Adoption is a legal process wherein the biological father or mother of the child intends to transfer the child from the family of birth to the family of adoption. The latter family treats the child as the natural born and all the rights vests in him which would have been if the child has been their own. Since there are innumerable rights in the process of adoption, the Hindu Adoptions and Maintenance Act, 1956 (hereinafter referred to as ‘The Act’) came into existence on 21st December, 1956. The Act confines its applicability to Hindus, Buddhist, Jains and Sikhs and rest of the religions are governed by the Guardian and Wards Act, 1890. [1]
Earlier, the practice of adoption was quite different. In those times, if any one spoke of adoption, it simply meant a boy, that is, the custom of adoption was limited to the boy child and not the girl child. The reason behind the adoption of the boy child pertains to the belief that the boy child will carry the name of the father and secondly, the father will be accorded a place in Heaven if the funeral rites are performed by his son. [2] Therefore, the ambit of adoption due to the aforementioned reasons was enclosed to the son and no recognition was given to a daughter.
With the enactment of the Act in 1956, adoption of daughters became recognized. Further, the Hindu Succession (Amendment) Act, 2005 removed the limited owner status on daughters and provided equal property rights with men. This amendment led to the effect that the daughters adopted under the Act will be granted equal property rights with men even though they are adopted. As per the Act, those children who are below fifteen years of age can be considered as adoption. The Act provides that the adopted child will be granted equal rights along with other family members unless the property has been divided before the adoption is made.[3]
The Personal Laws (Amendment) Act, 2010 [4] brought a change in the capacity of adopting parents. Prior to the amendment, the women who is unmarried, widowed, divorced and married with a person with disability do not have the right to adopt any child on her own name. However, after the Amendment Act, the position has transformed. The above mentioned categories of women now have the right to adopt the child.[5] However, if the person is not disabled, in that case the women will have to take the consent of her husband. The women adopting should be legally competent to adopt the child. The similar pre requisites are for men who are adopting the child except the fact that if he has more than one wife, he has to take the consent of all wives during adoption. It has also been stated in the law that the first wife to the marriage will be considered as the adoptive mother and others will be termed as step mothers.
There are certain key points without which the adoption will be termed as invalid. First, the child to be adopted should not be of the same gender as the adoptive parents own child. For instance, the adoptive parents have a boy child and they wanted another boy child. In that case, the adoption of a boy child will be invalid. The only option left with adoptive parents is to have a girl child. Secondly, the law says that there must be a minimum difference of twenty one years in case if the gender of adoptive parent and the adoptive child is different. That is, a mother can adopt a son only when the minimum age difference between the two is twenty one years. Thirdly, a child can be adopted only once in the lifetime and if done, cannot be revoke by either of the parties. The adoptive child neither should not be married nor had he/she completed the age of fifteen years except the fact that the customs are such which permitted the adoption only after the marriage and when the child is above fifteen years of age.
The child can be given in adoption only by three persons, that is, mother, father and the guardian. Before the Amendment Act, the mother was not given the right to give the child in adoption on her own discretion. However, after the amendment act, the mother, on her own discretion, can give the child in adoption. The guardians are appointed in case of destitute child wherein the parents of the child are not present. The guardians are selected either by parents themselves or by court for taking care of his person and his property, if any. The point which has to considered is whether the adoption done is for the welfare of the child and secondly, whether any financial considerations involved in the adoption.
Although the child severs all the ties with the natural parents, there is are some exceptions. First, the property vested in child before adoption will continue to vest in him or her irrespective of the fact that the child has been adopted to other parents. Secondly, the child will not marry any person who born to the adopted parents after his/her adoption while continuing in the family.
Therefore, the concluding remarks is that adoption in today’s world is a tool to reduce poverty and to make our future secure by reducing the orphan child or the child whose parents are poor and cannot afford to teach them. Though there are several non – profit organizations and various policies of the government which are trying to teach as many as children but somewhere there the environment is not conducive since they are always burdened with poverty. Adopting those children and giving affection and care to them will help them to be a better human and they will contribute much to this society.
by Neha Dayal
- The Guardians and Wards Act, 1890 (http://www.law.yale.edu/RCW/rcw/jurisdictions/assc/india/India_Guard_Act.pdf) accessed on 4th February,2015 at 8:34 pm.
- Bal Gangadhar Tilak v. Shrinivas Pandit, 42 IA 135 p154,(http://indiankanoon.org/doc/265118/) accessed on 4th February, 2015 at 10:15 pm
- Section 12 of the Hindu Adoption and Maintenance Act, 1956,(http://tcw.nic.in/Acts/Hindu%20adoption%20and%20Maintenance%20Act.pdf) accessed on 3rd February, 2015 at 5.15 pm.
- The Personal Laws (Amendment) Act, 2010, w.e.f. 1st September, 2010 (http://www.prsindia.org/uploads/media/Acts/The%20Personal%20Laws%20(Amendment)%20Act,%202010.pdf), accessed on 8th February, 2015 at 4:02 pm.
- Professor Kusum, Family Law Lectures, 3rd edition, Lexis Nexis Butterworths, Gurgaon, 2011, p323.