The shastric Hindu Law looked at adoption more as a sacrament than secular acts. Some judges think that the object of adoption is two folds:-
i.
To secure one’s performance of one’s
funeral rites and,
ii.
To preserve the continuance of one’s
lineage.
Hindus believed that one who died
without having a son would go to hell called poota, and it was only a son who called save the father from going
to potta. This was one of the reasons
to be get a son.
In the Hindu shastras, it was said that
the adoption 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 relation on the parental and maternal side in the adoptive family also
came into existence. This means he cannot merely the daughter was natural born
or adopted. It is interest to know that while Muslims and Parsi personal laws
do not recognize the concept of adoption, Hindu law, from the most ancient
times, had elaborate provision on adoption. Even the ancient Greek and Roman
legal system recognized adoption.
Currently, the adoption under Hindu law
is governed by the Hindu adoption and Maintenance Act, 1956. This Act applies
only to Hindus not to Muslims. It came into effect from 21st
December, 1956. The un-codified Hindu law recognized twelve kinds of sons, of
which five kinds were adopted sons. Under the codified law, a daughter could
not be adopted. The Hindu Adoption and Maintenance Act, 1956, recognized adoption
to both a son and a daughter. This Act has also brought about certain change in
the earlier un-codified Hindu law of adoption and maintenance. This Act extends
to the whole of India, except the state of Jammu and Kashmir.
ESSENTIAL
OF VALID ADOPTION
The following
may be considered as essential of a valid adoption:
The
adoption should be legally capable of taking in adoption:-
A male Hindu of sound mind, who has
attained the age of discretion, may take a son in adoption provided he has no
son, grand-son, or great-grand-son, natural or adopted living.
A wife cannot adopt, while her husband
is alive except with his express consent. A widowed can adopt under an
authority, express or implied from her husband.
The
person giving in adoption must be legally competent to do so:-
The only people who are authorized to
give a boy in adoption are his father and mother. The mother cannot give a boy in
adoption while the father is living without his express permission. But she can
do so if the father enters a religious under or becomes incapable of giving
consent.
The
adoptee should be lawfully capable of being taken in adoption:-
The person to be
adopted must be a male and belong to the identical caste of the adopting
father. A boy, whose mother (had she been unmarried) could not be lawfully
given in marriage with the adoptive father, cannot be adopted.
Actual
giving and taking:-
Actual giving and taking is absolutely
necessary even in case of sudras. The physical act of performing the giving and
taking may be delegated to another by the parents.
Dattahoma:-
High Courts differed on the point
whether dattahoma is necessary for a valid adoption. It is now generally agreed
that dattahoma is necessary but it may be performed later on even after the
death of adoptive father or the natural father of the boy
Who may
adopt?
Capacity of Male:-
Any male Hindu, who is of sound mind and
is not a minor, has the capacity to taken a son or daughter in adoption,
provided that if he has a wife living, he shall not adopt except with the
consent of his wife, unless his 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. If a person has more than wife living at
the time of adoption the consent of all the wives is unnecessary for any of the
reason specified in the preceding provision.
Capacity of Female:-
Any
female Hindu—
Who is sound mind;
Who is not a minor, and
Who is not married, or if married, whose
marriage has been dissolved or whose husband is dead or has completely and
finally renounce the world or has ceased to be a Hindu, or has been declared by
a court of competent jurisdiction to be of unsound mind, has the capacity to
take a son or daughter in adoption.
Where the woman is married it is the
husband who has the right to take in adoption with the consent of the wife. The
person giving a child in adoption has the capacity to do so:
1.
No
person except the father or mother or guardian of the child shall have the capacity
to give the child in adoption.
2.
The
father alone if he is alive shall have the right to give in adoption, but such
right shall not be exercised except 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 mind.
3.
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.
The person
can be adopted-
No
person can be adopted unless,
a.
He
or she is a Hindu.
b.
He
or she has not already been adopted,
c.
He
or she has not been married, unless there is a custom or usage applicable to
the parties which permits persons who are married being taken in adoption.
d.
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.
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