Adoption of a child in India

The Hindu adoptions and maintenance Act 1956.

Requisition 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) the person adopted is capable of being taken in adoption: and

(iv) the adoption is made in compliance with the other conditions mentioned in this act.

Capacity for a male Hindu to take in adoption:

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:

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 them is unnecessary for any of the reason specified in the proceedings proviso.

Capacity for 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 caused to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound min, has the capacity to take a son or daughter in adoption.

Persons capable of giving in adoption

No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.

1. Subject to the provisions of (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 or has been declared by a court of competent jurisdiction to be of unsound min, has the capacity to take a son or daughter in adoption.

2.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.

3. Wthe 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 may give the child in adoption with the previous permission of the court any person including the guardian himself.

4. 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 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) expression 'father' and ' mother ' do not include an adoptive father and adoptive mother.

(ii) 'guardian' means a person having the case of the person of a child or both his person and property and include
(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

(iii) 'court' means City Civil Court or a District Court within the local limits of whose jurisdiction the child to be adopted ordinarily reside.

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 a Hindu;

(ii) he or she has not already been adopted;

(iii) he or she has 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.

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 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;

(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) of the adoption is by a female and the person to be adopted is a male, the adoptive father 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 persons;

(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 child from the family of its birth (or in the case of an abandoned child or a 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 an adoption.

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 adoption and from such date all the ties of the child in the family and his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family:

(a) the child can not 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 is 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 relative in the family of his or her birth;

(c) the adopted child shall not divest any person of any estate which is vested in him or her before the adoption.

Right of adoptive parents to dispose of their properties:
Subject to any agreement to the contrary, 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.
Determination of adoptive mother in certain case:

(1) Where a Hindu who has a wife living adopts a child, she shall be deemed to be the adoptive mother and the others to be step-mother.

(2) Where an adoption have been made with 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
No adoption which as been validly made can be cancelled by the adoptive father or any other person, nor can be adopted child renounce his or her status as such and return to the family of his or her birth.

Presumption as to registered documents relating to adoptions:
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 assigned 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.

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 the person contravenes the provision of sub- section (10, 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 Sate Government or an officer authorised by the State Government in his behalf.