G W A- 1890

&
H A M A-1956
 Quick assessment

1. Expand HAMA , GAMA.

2. who can take adoption under HAMA?
3. Whether single male can adopt child ?
4. what age can make adoption ?
5. Whether a Lesbian /gay can take adoption?
6. Can individual prefer for Male/Female child
during Adoption ?
 Brief history behind the act
• Before the act of 1890 there was no all-India act dealing
with the guardianship of minors.
• the three presidencies, certain regulations in force in the
presidency of Madras, Bombay and Bengal
• One fragmentary legislation (act 9 of 1861) amending
the law relating to minors and the European British
minors act (13 of 1874) which provided for the
guardianship of European british minor
• Number of provisions of the act have led to controversies
in their interpretation and require clarification
 GAWA
Title, extent and commencement.-
(1) This Act may be called the Guardians and
Wards Act, 1890.
(2) extends to the whole of India (except the
State of Jammu and Kashmir).
(3) came into force on the first day of the July,
1890.
 Definitions
(1) "minor" means a person who , under the
provisions of the Indian Majority Act, 1875 (9
of 1875), is to be deemed not to have
attained his majority;
(2) "guardian" means a person having the care
of the person of a minor or of his property or
of both his person and property;
(3) "ward" means a minor for whose person or
property or both there is a guardian;
 GAWA
• Not an Adoption Law as it does not establish
parent child relationship
• Establishes only a Guardian and Ward
relationship only till the child attains the age of
18 years
• The cases applicable under GAWA may be
admissible under Civil Miscellaneous Applications
(CMA) or Miscellaneous Judicial Case (MJC)
• Eligibility for applying for guardianship order and
the court procedure as per CPC, 1882 is defined
under Sec 7 to 26 of GAWA.
 Persons entitled to apply for order
An order shall not be made under the last
foregoing section except on the application of
(a) the person desirous of being, or claiming to be,
the guardian of the minor
(b) any relative or friend of the minor
(c)the Collector of the district or other local area
within which the minor ordinarily resides or in
which he has property; or
(d) the Collector having authority with respect to
the class to which the minor belongs.
 Power of the Court to make order as to
guardianship.

Where the Court is satisfied that it is for the

welfare of a minor that an order should be
made
(a) appointing a guardian of his person or
property or both, or
(b) declaring a person to be such a guardian the
Court may make an order accordingly.
 Salient aspects of GAWA
• Guardianship petitions can only be filed by a person entitled
as defined inSec8ofGAWA
• PAPs are resorting to filing an application under GAWA for
taking custody of OAS children with a view to undertake
adoption under HAMA through added
• Rehabilitation of OAS children has to be as per the JJ Act
2015 and such petitions should not to been pertained
• In case of applicant being given guardianship under GAWA,
the interest of the child can not be ensured in the absence of
proper eligibility check and follow-up
• They have no legal rights and responsibilities towards each
other as soon as the child attains majority (18years)
 Hindu Adoption and
Maintenance Act, 1956
(hereinafter referred as
“HAMA”).
 Hindu Adoption Maintenance Act, 1956 (HAMA)

• An Act only for Hindus, as the child, the giver and the
taker has to be a Hindu (a Muslim, Christian, Parsee,
Jews, any member of a scheduled tribe governed by
their customary law can not adopt) (Sec 2 of HAMA)
 Eligibility of adoptive parents
(Sec 6 to 8 of HAMA)
• Only a Hindu, Buddhist, Jain, or Sikh husband above
the age of 18 can adopt under this act only with the
consent of his living wife (Husband is the adopter and
wife is merely consenter)
• A single female (unmarried, divorcee or widow) can
also adopt (Sec 8 (c))
• A person having a male child can not adopt a male
child
• A person having a girl child can not adopt a girl child
• Age difference between the adoptive father and the
adoptive girl child to be at least 21 years (Sec 11 (iii))
• The child has to be below 15 years of age (Sec
10(iv) of HAMA)
• Provision of payment or reward and any
contravention shall be punishable (Sec 17 of
HAMA)
• Adoption can be concluded through a
registered Adoption deed subject to
compliance with the provisions of the Act (Sec
16 of HAMA)
 Courts permission to adopt under this act is
required only in the following cases (Sec 9(4) of
HAMA):
• where both the father and mother are dead
• where both the father and mother have
completely and finally renounced the world
• where both the father and mother have
abandoned the child
• where both the father and mother have been
declared to be of unsound mind by the court
concerned
• where the parentage of the child is not known
• Valid Adoption can not be cancelled (Sec 15
of HAMA)
 OTHER ACTS DEALS WITH
ADOPTION IN INDIA
• Juvenile Justice (Care and Protection) Act
of 2000 amended in 2006 (JJ act)
• Present CARA guidelines for adoption
Age prospective for adoption

The minimum age difference between the child

and either of the
prospective adoptive parents shall not be less
than twenty-five years.
 Review

1. Expand HAMA , GAMA.

2. who can take adoption under HAMA?
3. single male can adopt child ?
4. what age can make adoption ?
5. Lesbian /gay can take adoption?
6. Can individual prefer for Male/Female child
during Adoption ?
 References
• Hindu Adoption and Maintenance Act, 1956 National Judicial Academy,
Bhopal
• Supreme Court’s Judgment in the case of Lakshmi Kant Pandey.
• CARA’S official website: Available at: (www.adoptionIndia.nic.in).
• CARA Guidelines, 2011: http://www.adoptionindia.nic.in/guidelinefamily/
Overwiew.html
• India code ;- https://indiacode.nic.in/about.jsp
• Role of Judiciary & Court Procedure for Adoption published by Ministry of
Women & Child Development Government of India
• Kishwar, M. (1994). Codified Hindu Law. Economic & Political Weekly, 29,
2145-61.
• THE JAMMU AND KASHMIR REORGANISATION BILL, 2019