NATIONAL LAW INSTITUTE UNIVERSITY BHOPAL

Session: 2019-2020
FAMILY LAW-I
Trimester-V
Project on:
ADOPTION UNDER HINDU LAW

SUBMITTED TO; SUBMITTED BY:

Dr. Debashree Sarkar Gaurav Singh

Assistant Professor 2018BALLB34

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 CERTIFICATE

This is to certify that project titled “ADOPATION UNDER HINDU LAW”, has
been prepared and submitted by Gaurav Singh currently pursuing their B.A. LL.B.
(Hons.) at National Law Institute University, Bhopal in fulfillment of Family law-I
course. It is also certified that this is their original research project and this project
has not been submitted to any other University, nor published in any journal.

Date:
Signature of student: …………………………… ……………
Signature of research supervisor: …………………………….

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 ACKNOWLEDGEMENT

This project work has been done with a lot of efforts, I would like to thank all the
members who directly or indirectly helped in the completion of this project, and I
would like to thank our subject teacher Dr. Dabashree Sarkar , who constantly
helped me in the completion of this project, by her effective guidance, I would also
like to thank my friends who helped me in the completion of the project, finally I
would like to thank all the teaching and non-teaching staff, without whom the
project work wouldn’t have been completed.

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 TABLE OF CONTENTS
1. Introduction…………………………………………………..05
2. Adoption – A concept of law…………………………………06
3. Adoption under various law…………………………………..07
4. Adoption under English law……………………………………07
5. Concept of Adoption in Ancient India…………………………07
6. Concept of Adoption in Present India…………………………08
7. Hindu law…………………………………………………………09
8. Adoption under Hindu law……………………………………….10
9. Hindu Adoption and Maintenance Act 1956……………………10
10.Requirements for a valid adoption………………………………11
11.Effect of adoption…………………………………………………15
12.Gender bias…………………………………………………………17
13.The Personal Law Amendment Act 2010…………………….…..18
14.Hindu Minority and Guardianship Act 1956………………….…19
15.The Guardian and Wards Act 1890……………………………….20
16.Legal procedures under the Guardian and Wards Act 1890…….21
17.Conclusion …………………………………………………………..22
18.Bibliography…………………………………………………………23

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 INTRODUCTION

Children are considered a bundle of joy and on whom the future of the country depends.
While on one hand children born in India are being pampered and exclusively taken care of and
given all the necessities for their all-round-development. Comparatively on the other hand there
are over 60,000 children being abandoned per year in India.1
In some cases these children become victims of human trafficking2 and sexual violence3.
In fortunate cases, the abandoned children are taken to any adoption agency and may hope for a
better life while waiting till they get adopted by someone. Such kinds of children are being given
a chance at a second life through the process called “adoption”.
In the simpler dictionary meaning adoption is a “process whereby a person assumes the
parenting for another and in doing so permanently transfers all rights and responsibilities along
with filiation i.e., the determination of paternity from the biological parent or parents”.
The author is of the opinion that while anyone can choose to care for a child in need for
short or long-term periods, such as a foster care situation, but adoption is a different situation that
requires a much different commitment. Adoption is the legal act of permanently placing a child
with a parent or parents other than the birth parents. In this process, the parental rights of the
birth parents are permanently terminated. The adoptive parents then assume the full legal
responsibility for the child. The child, in turn gains the same legal rights as that of a child born to
the adoptive parents.
Adoption means the connection between the child and the caregiver is legal and binding
on both parties, not just convenient. Adoption involves a great deal of paperwork, as well as the
assistance of lawyers, social workers and judges to finalize the process. It is a permanent
arrangement, just like a natural parent-child relationship. However, for most families, adoptions

1
Almas Shaikh, Adoption Laws in India, http://www.lawctopus.com/academike/legal-frameworkgoverning-
adoption-laws-india/
2
Child trafficking according to the UNICEF is defined as “any person less than 18 years of age who is recruited,
transported, transferred, harboured or received for the purpose of exploitation either within or outside a country”. In
India there is a large number of children trafficked for various reasons such as labour, begging and sexual
exploitation
3
P.M. Nair, A report on trafficking in women and children in India,
http://nhrc.nic.in/Documents/ReportonTrafficking.pdf

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are ultimately an act of love and the desire to enrich their family and the life of the child who
becomes a part of that family4

ADOPTION - A CONCEPT OF LAW

Adoption as a legal concept was available only among the members of the Hindu family and the
Hindu parents are legally allowed to adopt the child as their natural born child.
Only Hindus were allowed to legally adopt the children and other communities could
only act as legal guardians of the children. The author is of the view that adoption has always
been considered as a wonderful opportunity to provide a child a beautiful family and parents.
It offers an excellent alternative to institutional care of destitute, abandoned and
neglected child in an atmosphere of love, affection and understanding which only a family can
provide and no other institution can replace it.5
The author is of the opinion that adoption is the institutionalized practice through which
an individual belonging by birth to one kinship group6 acquires new kinship ties that are socially
and legally defined as equivalent to the congenital ties.
The term “Adoption” as defined under personal law means that “the process through
which the adopted child is permanently separated from his biological parents and becomes the
legitimate child of his adoptive parents with all the rights, privileges and responsibilities that are
attached to the relationship”7
Adoption is the transplantation of a child from the family in which he/she is born, to
another family where he/she is given by the natural parents by way of adoption. The adopted
child is then taken as being born in the new family and acquires rights, duties and status there
only and the legal bond with the old family comes to an end.
The real concept of adoption is concerned with Hindus only. The adoption is not an
institution peculiar to Hinduism but also owes its origin to the social communism peculiar to the

4
https://www.mentalhelp.net/articles/introduction-to-adoption-from-the-adoptive-parent-perspective/
5
William A. Dairty, International Encyclopaedia of social science, vol. 1, p.95
6
Kinship is the web of social relationships that forms an important part of the lives of most humans in most
societies. The study of kinship is the study of what man does with these basic facts of life such as mating,
parenthood and socialization.
7
Sangitha Krishnamurthi, Adoption Law in India, http://www.thealternative.in/society/adoption-lawin-india/

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primitive races. In early times, children irrespective of their sex were taken in adoption.So
adoption is a chance given for the abandoned children a new life.8

ADOPTION UNDER VARIOUS LAWS

HINDU LAW: The Hindu Adoption and Maintenance Act 1956 and Juvenile Justice Care and
Protection of Children Act 2000.
MUSLIM LAW: There is no separate law to make the adoption legal under Muslim Community.
CHRISTIAN LAW & PARSI LAW: The Guardians and Wards Act 1890
A Hindu can become a guardian only under Hindu Minority and Guardianship Act 1956.

ADOPTION UNDER ENGLISH LAW

The English law started recognizing adoption during the latter half of the nineteenth century.
Legal adoption came into existence only during 1926. The purpose of this Act was to prevent the
biological parents from claiming back their children. A more comprehensive Act was passed in
1950. This Act was modified in the year 1958.
English law of adoption is very similar to the Hindu law of adoption inasmuch as that it
lays down that the adopted child for all intents and purposes becomes like a natural child and the
child’s ties with his natural family are severed9.

CONCEPT OF ADOPTION IN ANCIENT INDIA

The ancient texts which throws the light on the concept of adoption in India were Dattaka
Mimamsa, Dattaka Chandrika, Manu, Yagnavalkya, Gautama, Baudhayana and Kautilya are the
very few important Hindu texts that throws the light on the concept of Adoption in ancient India.
Exclusively, Smritis deal with a host of subjects such as domestic rituals, customary rites,
inheritance etc. The Smritis like Manu, Yajnavalkya, Kapila, Lohita strongly discuss about the
concept of law of Adoption and Inheritance of the adopted child.

8
Shuani, Adoption in India (An overview), http://www.yourarticlelibrary.com/adoption/adoption-inindia-an-
overview/47681/
9
Almas Shaikh, Adoption Laws in India, http://www.lawctopus.com/academike/legal-frameworkgoverning-
adoption-laws-india/

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In all these texts it is mentioned that “adoption is a process to incorporate a child permanently
into a family given with all the rights of a natural born child”, in which he/she was not been
born. It also says that the child was adopted for temporal and spiritual purposes and more
recently, to satisfy the emotional and parental instincts of the adopters. In smritis literature, the
Law of Adoption was parent based and not child based. The smirtikaras suggested that only one
son could be adopted for the continuation of the family line. There were opinions laid down in
these texts that are the whole Smirits and Puranas ordain that the only son shouldn’t be given or
received in an adoption.
Another common prediction is that the adoption process should be done only by caste and gotra
based meaning thereby in olden days if the parents try to adopt the child then the criteria for the
adoption is that the child must also belong to the same gotra and caste as their parents do. In
Manu it points out that the gifting and sale of children is sinful in ancient India, while nowadays
it is recognized as adoption10

CONCEPT OF ADOPTION IN PRECENT INDIAN LAW

The custom and practice of adoption in India dates back to the ancient times. Although the act of
adoption remains the same, the objective with which this act is carried out has differed it usually
ranged from the humanitarian motive of caring and bringing up a neglected or destitute child to a
natural desire for a kid as an object of affection, a caretaker in old age and an heir after death of
the particular person who adopts the child.
The author is of the view that since adoption comes under the ambit of the personal laws,
there has not been a scope in the Indian scenario to incorporate a uniform law among the
different communities. Hence, this law is governed by various personal laws of different
religions. So the concept of adoption is different among different personal law such as Hindus
alone can adopt under Hindu Adoption and Maintenance Act while under Muslim, Christian,
Parsis there is no adoption wherein they become only the guardian to the adopted child and not
the biological parent as it was in the case of Hindu adoption.
Adoption is not permitted in the personal laws of Muslims, Christians, Parsis and Jews in India.
Hence they usually opt for the guardianship of a child through the Guardians and Wards Act

10
https://www.scribd.com/doc/20167904/ADOPTION-IN-ANCIENT-INDIA

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189011. Indian citizens who are Hindus, Jains, Sikhs or Buddhists are allowed to formally adopt a
child under the adoption is under the Hindu Adoption and Maintenance Act of 1956. But
nowadays, under the Juvenile Justice Act of 2000 which is a secular law in which any religion
can adopt a child. There is no such restriction or being imposed on the parents to adopt the child
only on some basic criteria’s this act provides and covers wide range for adoption process. Most
of the people in the recent days go for the adoption under Juvenile Justice Act because under the
Hindu Adoption and Maintenance Act one of the drawback is that the children of same gender is
not allowed to adopt even if the child are twins, it is not legally valid under Hindu Adoption but
valid under Juvenile Justice Act 2000.

ADOPATION UNDER HINDU LAW

Hindu law is the only law in India which treats an adopted child as being equivalent to a natural
born child. The sole and the only reason for this is mostly because of the belief that a son was
indispensible for spiritual as well as material welfare of the family and because as to continue as
their legal heir and has to take care of them in the olden days.
Under the old Hindu law, only a male could be adopted and a female child could not be
adopted. Then even if a male child is adopted restrictions were imposed based on the caste and
gotra. A female child strictly could not be adopted under the Hindu Law. Under the Old Hindu
law only the male had a right to adopt and the consent or dissent of his wife to the proposed
adoption is immaterial12.
Under the modern Hindu Law every Hindu male or female has the capacity to make an
adoption provided he or she has attained the age of majority and are of sound mind. These all
provisions and legal rules come under the Hindu Adoption and Maintenance Act 1956.

The author is of the opinion that Hindu law is the only law which recognizes adoption in the true
sense of taking of a son as a substitute for a natural born one. The reason for this is that only a
son could fulfil the role of ‘deliverer’ from the hell. The adoption of daughter was thus not
legally recognised though it was permissible where custom allowed it.

11
https://www.linkedin.com/pulse/lawsgoverning- adoption-india-nishant-mehrotra
12
http://shodhganga.inflibnet.ac.in/bitstream/10603/26528/8/08_chapter%201.pdf

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In the case of Bal Gangadhar Tilak v Shrinivas Pandit13, “the privy council observed adoption
among the Hindus is necessary not only for the continuation of the childless father’s name but
also as a religious means to make those obligations and sacrifice which would permit the soul of
the deceased father passing from Hades to paradise”. Similarly this was also followed in the case
law of Amarendra Mansingh v Sanatan Singh14 the privy council observed that :“The foundation
of the Brahmanical doctrine of adoption is the duty which every Hindu owes to his ancestors to
provide for the continuance of the line and the solemnization of the necessary rites15.

ADOPTION UNDER HINDU LAW

The adoption under Hindu law is governed by the Hindu Adoption and Maintenance
Act,1956.This Act is prospective and not applicable to pre-Act adoptions this was laid down in
the case of Nagireddi Lakshmi v Nagireddi Nagaraju16 .This Act of 1956 extends only to 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 Sikhs 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 this father and mother or whose parentage is not known and who in either
case is brought up as a Hindu, Buddhist and Jains or Sikh. Adoption is recognized under the
Hindus and is not recognized under Muslims, Christians and Parsi.

HINDU ADOPTION AND MAINTENANCE ACT 1956

Adoption in the Hindus is covered by the Hindu Adoption and Maintenance Act 1956, after
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
states of Jammu Kashmir. It applies to all Hindus, Buddhists, Janis and Sikhs and to any other
person who is not a Muslim, Christians, Parsi by religion.

13
42 IA 135, p.154
14
60 IA 242
15
Kusum, Family Law 1, Lexis Nexis Publication, 4th edition, Haryana 2015
16
AIR 2005 AP 17

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The Hindu Adoption and Maintenance Act 1956, provides for adoption of Hindu children by the
adoptive parents belonging to Hinduism. This is not applicable to other communities like
Muslims, Christians and Parsi. They have to recourse to Guardians and Wards Act 1890, where
in this Act they become only guardians of the child and not the parents of the child as it is in
Hindu. They will be considered as guardians but the status which is given among Hindus will not
fit into this17.
To conclude by saying when a child is adopted under Hindu adoption that child is
recognized as natural born child but it is not the case among Christians or Muslims wherein they
can take up the position as guardians and not the biological parents. But the Hindu Minority and
Guardianship provides for the Hindus to act as guardians.

REQUIREMENTS FOR A VALID ADOPTION

Section 6 provides the requisites of a valid adoption. It lays down that no adoption shall be valid
unless the person adopting has the capacity as also has the right to take in adoption, the person
giving in adoption has the capacity to do so; the person adopted is capable of being taken in
adoption and the adoption is made in compliance with the other conditions mentioned in the
chapter II18.
The adoption is completed by an actual giving and taking and the ceremony is called
“Datta homam” this was the condition in the older days before the enactment of the section 11 of
the Hindu Adoption and Maintenance Act 1956. “One of the important requisites of the Hindu
Adoption is the person adopting is lawfully capable of taking the child and the person giving in
adoption is lawfully capable of giving consent in Adoption”.

The most possible questions that arise out of Hindu adoption are listed below:
a) Who are entitled to adopt a child under Hindu law?
b) Whether it is Male or Female who is entitled to adopt or both is allowed to adopt the
child?
c) To adopt a child who has to give the child in adoption
d) What are the conditions for the adopted child ( criteria for the child to be adopted)

17
http://www.legalserviceindia.com/articles/hmcp_adopt.htm
18
Kusum, op.cit., p.8

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 e) Is there any other condition for a valid adoption?

 In this Act it is said that any adult Hindu male who is of sound mind can adopt a child.
 If the man is married, then the consent of the wife is necessary.
 The same criteria goes with the women also, like wise a female adult Hindu of sound
mind could adopt a child if she is:

Unmarried
Divorced
Widowed or

 Her husband suffers from certain disabilities , the women is entitled to adopt only when
the below three requisites are also fulfilled:
 The husband ceased to be a Hindu and Has renounced the world
 That he has been declared to be of unsound mind by the jurisdiction of the court.

If the above all requirements are fulfilled then the husband and the women is legally entitled to
adopt the child.
a) Who may adopt i.e., who are entitled to adopt a child?

SECTION 7 and SECTION 8 of the Hindu Adoptions and Maintenance Act 1956, prescribes the
general capacity of Hindu male and female to adopt a son or daughter and it is determined on the
bases of capacity of a male and a female to adopt the child.
 Section 7 deals with “Capacity of Male”.
 Section 8 deals with “Capacity of Female”.

b) Whether it is male or female who is entitled to adopt?

Under the Hindu Adoption and Maintenance Act 1956, it is stated that both male and female are
entitled to adopt a child but under certain conditions which are given in section 7 and 8
respectively. Prior to the Personal Law Amendment Act 2010, a female adult Hindu can adopt a
child.

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CAPACITY OF MALE – SECTION 7
Section 7 of the Hindu Adoption and Maintenance Act 1956, prescribes the general capacity of a
Hindu male to take a son or a daughter in adoption if and only if:
 He should possess sound mind
 He should not be a minor, i.e., the age of the person should be of majority age as
prescribed under law.
 If he has a wife living, he shall not adopt except with his wife’s consent, unless his wife
has completely and finally renounced the world that:
 She has ceased to be Hindu or
 Has been declared by a court of competent jurisdiction to be of unsound mind.
 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 one of them is unnecessary for any of the reasons
specified in the preceding points, if that satisfies then it is not necessary to get the consent
of that particular male who has more than one wife.
 This section also provides that if the wife finds that the choice of the person to be adopted
by the husband is not appropriate or is not in the interest of the family then she can veto
his discretion.
The above point gives us the conclusion that the consent of the wife has been made as a
condition precedent for adoption by a male Hindu. The Act clearly points out that where both the
parents are dead or is legally incompetent to give in adoption, and then in that case the guardian
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of the child may give the child in adoption with the permission of the court.

CAPACITY OF FEMALE – SECTION 8

Section 8 of the Hindu Adoption and Maintenance Act, prescribes the general capacity of a
Hindu female to take/ adopt a son or daughter only when:
 she is of sound mind
 she is not a minor and
 she is not married or if married;
 whose marriage has been dissolved or

19
A guardian means a person having the care of person and/ or property of the child and includes a person so
appointed by the will of the child’s mother or father or by the court.

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  whose husband is dead or
 has completely renounced to the world or
 has ceased to be a Hindu or
 has been declared by the court of competent jurisdiction to be of sound mind
If all the above requirements are fulfilled then the respective women 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 above valid points gives us the conclusion that a female Hindu who is of sound mind and
has completed the age of eighteen years can also take son or daughter in adoption to herself and
in her own rights.
After the Personal Laws (Amendment) Act 2010, a female’s right to adopt has been brought at
par with the male’s rights.

C) &d) who may give child in Adoption and what are the conditions for the adopted child
(criteria for the child to be adopted)
Section 10 of the Hindu Marriage Act 1956 gives the answer for the above question that the
section provides that: “No person except the father or mother or guardian of the child shall have
the capacity to give the child in adoption”.
 The father alone 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 of the child has
completely and finally renounced the world or has ceased to be a Hindu or has declared
by a court of competent jurisdiction to be of unsound mind.
 The mother of the child may give the child in adoption if the father is dead or has
completely renounced the world or has ceased to be a Hindu or has been declared as
unsound.
 Whether both the father and mother are dead or have completely and finally renounced
the world and where the parentage of the child is unknown, the guardian of the child may
give the child in adoption with the previous permission of the court.

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The court while granting the permission shall be satisfied that the adoption is for the welfare of
the child and due consideration and maintenance will be given to the wishes of the child. Then he
is bound to adopt the child.

E) What are the conditions for the person who is adopting i.e., who may be

adopted?
No person can be adopted unless:
 He or she is a Hindu
 He or she has not already been adopted
 He or she has not married, unless there is a custom or usage applicable to the parties
which permits persons who are married being taken in adoption.
 He or she has not completed the age of fifteen years.

EFFECT OF THE ADOPTION

When once a child has been adopted that child severs all ties with his natural family where he/
she is adopted with a privilege as a natural born child. All rights and obligations of natural born
children fall on him. The wife of a Hindu male who adopts is deemed to be adoptive mother.
Where an adoption is made with the consent of more than one wife, the senior most in marriage
is deemed to be the adoptive mother and the rest are deemed to be stepmothers20.
In the case of adoption by the widower or bachelor any women whom he subsequently marries is
the stepmother of the child. Similarly, in case of adoption by a widow or an unmarried woman,
any man whom she marries is deemed to be the step- father of the child.
All laws relating to the adoptive parents and/ or step parents can be seen in Section 12, 13 and 14
of the Hindu Adoption and Maintenance Act 1956. In this context, an issue came up with a case.

CASE NAME: Sawan Ram v Kalavati21

LEGAL ISSUE: Whether in the case of adoption by a widow, would the adopted child be
deemed to be the child of the deceased husband as well, so as to be heir.

20
http://www.nja.nic.in/2.%20Hindu%20Adoption%20Law%20and%20Judicial%20interpretation-
%20Deepak%20KR.Verma.pdf
21
AIR 1967 SC 1761

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DECISION: The Supreme Court held that the adoption would not only by the female, but also to
her deceased husband. Also, it has to be noted once adoption process made by the parents cannot
be cancelled by the parents, nor can the adopted child renounce the adoptive family and go back
to his/her birth parents.
Adoption is generally held to be permanent in nature, with neither parties going back on
their words. This has been stated in section 15 (Valid Adoption not to be cancelled) is laid down
in the Act. But care has to be taken that the adoption referred to in this section is a valid
adoption.
Section 12 also makes a clear view that from the date of the adoption, an adopted child is
deemed to be the child of his/her adoptive father or mother for all purposes and his ties in the
family of his or her birth shall stand severed and replaced by those created in the adoptive
family.

CASE NAME: Kartar Singh v Gurdial Singh22

LEGAL ISSUE: where the respondent who was adopted by his maternal grandfather claimed
property rights in the family of his birth.
DECISION: The court said that upon adoption no rights remain in the family of birth.
The adoptive children have inheritance rights connected with their adoptive parents, but
not with their biological parents.
Section 12 lays down certain provision for the effect of adoption:
I. RESRTICTION ON THE MARRIAGE OF ADOPTED CHILD: The section clearly
point out that a restriction on the marriage of adopted child with a person to whom he or
she could not have married if he or she had continued in the family of his or her birth.
II. RIGHTS OF THE ADOPTED CHILD IN ACCORDANCE WITH PROPERTY: The
proviso saves the vested right of the adopted child in the property subject to the
obligation, if any attached to the ownership of such property, including the obligation to
maintain relatives in the family of his or her birth.
III. Likewise, clause (c) to the proviso lies down that the adopted child shall not divest any
person of any estate vested in him or her before the date of adoption.

22
1973 Cur LJ 529

16
IV. This above provision is related to Section 16 which embodies a rule of presumption lays
down that whenever any document registered under any law for the time being in force
evidencing adoption and signed by the person giving and person taking the child in
adoption is produced before any court, then it shall presume that the adoption has been
made after complying with the provisions of the Act unless proved otherwise.

SECTION 13 PROVIDES THE RIGHT OF THE ADOPTIVE PARENTS TO DISPOSE

OF THEIR PROPERTIES.
This section clearly provides that the adoptive child gets property rights in his new family, but an
adoption does not deprive the adoptive father or adoptive mother of the power to dispose of his
or her property by transfer inter vivo or by will, unless there is an agreement imposing such
restrictions.
Adoption once made is final and irrevocable. An adoption validly made cannot be
cancelled by the adopter, natural parents or any other person. Nor can an adopted child renounce
his adoptive parents and return to the family of his or her birth. This means that is if a person
makes an adoption, under no circumstances he or she gets rid of the child. An adopted child
cannot again be given in adoption23.
The author is of the idea that once an adoption has been duly made in accordance with law, it
cannot be cancelled nor can the adopted child, the adoptive parents and the natural parents
destroy the rights of the adopted.

GENDER BIAS
Though after the enactment of the Act, it has been noted that the gender discrimination has been
eliminated but still in actual sense it still exists. While the Act had considerably improved and
enlarged the rights of females in regard to giving and taking in adoption, yet there was a bias
against females in some respects.
For instance, a married female Hindu could not adopt a child not even with consent of her
husband. Whereas, a husband after the wife’s consent could adopt but on the other hand a wife
even after husband’s consent could not adopt. A married women could adopt only if her marriage

23
Bare Act, http://www.vakilno1.com/bareacts/hinduadoptionsact/hinduadoptionsact.html

17
had been dissolved or she was a widow or if the husband has ceased to be a Hindu or has
renounced the world or has declared by a competent court to be of unsound mind. Thus, an
unmarried woman, a divorcee or a widow had more freedom in the matter than a married
woman.
Similarly, in the matter of giving a child in adoption also, the father had a better right. If
he is alive, he alone could give away the child though with his wife’s permission. The mother
could not do so. Her right to give in adoption was restricted and she could exercise the same only
when the father is dead or had completely renounced the world or had declared by the court of
competent jurisdiction to be of unsound mind.
Thus, where the mother had given chance to give her son in adoption while the father is
alive and the female who adopted the child was only 19 years old compared to the adopted child,
the adoption is invalid on both the counts.
To conclude by saying that there exists gender bias even though, adoption is legally valid
among Hindus still there is a gender Bias where the male acquires the superior position but
women are inferior all through their life24. But after the personal law amendment the gender bias
is discriminated. So the female with the consent of the wife can adopt a child.

CASE NAME: Malti Roy Chowdhury v Sudhindranath Majumdar24

LEGAL ISSUE: whether or not the married woman has the right to adopt the child?
DECISION: The court remarked that the adoption has to be taken factually or legally by the
male in case of marriage and not by the wife. In other words, the wife has no capacity to adopt
even with the consent of the husband.
The conclusion will be that the law has taken of the Gender Discrimination in the Act and hence
passed “The Personal Laws (Amendment) Act 2010”, giving right to married females to adopt
with husband’s consent but this is not likely to change the fate of married females placed in the
position of the disabled, deserted.

THE PERSONAL LAWS AMENDMENT ACT 2010

After the enactment of the Hindu Adoption and Maintenance 1956, the various sections of these
statutory provisions underwent several amendments. The statue was put into scrutiny and these

24
AIR 2007 Cal 4, (2007) 1 CALLT 323 HC

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proposals for amendments were made. These proposals were then incorporated through the
personal law amendment, Act 2010.
Thus here a few amendments in section 8 and section 9 of the Hindu marriage and Adoption Act
1956 that are incorporated in the statutes25.
AMENDMENT OF SECTION 8:
In the Hindu Adoption and Maintenance Act 1956 for section 8, the following section shall be
substituted namely:
CAPACITY OF A FEMALE HINDU TO TAKE IN ADOPTION
Any female Hindu who is of sound mind and is not a minor has the capacity to take 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.
AMENDMENT OF SECTION 9(2)
In the Hindu Adoption and Maintenance Act 1956, section 9(2) provides: (2) Subject to the
provisions of subsection (4), the father or mother, if alive shall have equal right to give a son or
daughter in adoption: Provided that such right shall not be exercised by either of them shall with
the consent of the other unless one of them has completely and finally renounced the world or
has ceased to be Hindu or has been declared by a court of competent jurisdiction to be of
unsound mind; (ii) sub-section (3) shall be omitted.

HINDU MINORITY AND GUARDIANSHIP ACT 1956

The Hindu Minority and Guardianship Act 1956 have codified laws of Hindus relating to
minority and guardianship. As in the case of unmodified law, it has upheld the superior right of
the father.
It lays down that a child is a minor till the age of 18 years. Natural guardian for both boys and
unmarried girls is first the father and then the mother. Prior right of mother is recognized only for
the custody of children below five. In case of illegitimate children, the mother has a better claim
than the acknowledged father. The act makes no distinction between the person of the minor and

25
http://indialawjournal.com/volume8/issue-1/article10.html

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his property and therefore guardianship implies control over both. The Act directs that in
deciding the question of guardianship, courts must take the welfare of child as the paramount
consideration.26

“Section 6 of this Act provides about the natural guardians of a Hindu minor”.
“Section 7 of the very Act speaks about the guardianship of the adopted son”.

THE GUARDIANS AND WARDS ACT 1890

As the name itself suggest, the Hindu Adoption and Maintenance Act 1956 were mostly the
guidelines for the Hindu society. Another law had to be made which was sensitive to the
personal laws of other religion like Christians, Muslims, Parsis and Jews which did not come
under the Hindu Adoption and Maintenance Act of 1956. But these are governed by the
Guardians and Wards Act of 1890.
Personal laws of Muslims, Christians, Parsis and Jews do not recognize complete
adoption. As non-Hindus do not have an enabling law to adopt a child legally, the people
belonging to these religions who are desirous of adopting a child can only take the child in
“guardianship” under the provisions of the Guardianship and Wards Act 1890.The statute does
not deal with the adoption as such but mainly with guardianship.
The Guardians and Wards Act 1890 was a law to overtake all other laws regarding the
same. It became the only non-religious universal law regarding the guardianship of a child and
applicable to all parts of India except the state of Jammu and Kashmir. This law is particularly
outlined for Muslims, Christians, Parsis and Jews as their personal laws do not allow for full
adoption as it is provided in the Hindu Adoption. It applies to all children regardless of race,
caste, creed and sex.
Under the Guardians and Wards Act 1890 it was stated that any child who had not completed 18
years of age was to be a minor. This child would be appointed guardians by the court or any
other authority. They would decide who would take place as the said child’s guardian or by
removing another as a guardian27.

26
http://medind.nic.in/jbc/t12/i2/jbct12i2p111.pdf
27
http://www.archive.india.gov.in/citizen/lawnorder.php?id=16

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 LEGAL PROCEDURES UNDER THE GUARDIANSHIP AND WARDS
ACT 1890
All these procedures took place only after an application had been placed by the person who was
willing to take a child under himself and to act as his guardian. The application should contain all
the possible information that would have been required, including the information about the
guardian and any reason as such for the guardianship.
Once the court admits the application, a date for a hearing would be set. The court will
hear the evidences before making a decision. Unlike in the procedures given in the Hindu
Maintenance Act 1956 where a person once adopted has a single set of parent, here a minor and
his property could have more than one guardian.
It was required under these cases of guardianship that the court use its discretionary
power and considered the interests of the minor. His/ Her age, sex, religion, the compatibility
proportion with the guardian, the death of the parent must be taken into consideration. The
minor’s preference may also be taken into consideration in this guardianship Act 1890.
The process here is completely different from the Hindu kinds of Adoption wherein the
process makes the child a ward, not an adopted child.
Under this law, when children turn 21 years of age, they no longer remain wards and
assume individual identities. They do not have an automatic right of inheritance in their parents
property under whom he was under protection called ward. These requirements remain silent on
the cases of orphans, abandoned and surrendered children.
This Act however does not provide to the child the same status as a child born
biologically to the family or unlike a child adopted under the Hindu Adoption and Maintenance
Act 1956. Here the child cannot become their own, take their name or inherit their property.
The Guardianship and Ward Act 1890 confers only a guardian-ward relationship. This
legal guardian-ward relationship exists until child completes 21 years of age. Foreigners, who
seek to adopt an Indian child, do so under this Act to assume legal guardianship of the child after
giving an assurance to the court that they would legally adopt the child as per the laws of their
country, within two years after the arrival of the child in their country28.
To conclude by saying that under the Guardians and Wards Act 1890 it is mostly the
discretion of the court to grant the child to a mere custody rather than the adoption and
28
http://medind.nic.in/jbc/t12/i2/jbct12i2p111.pdf

21
specifically the Hindus cannot be a guardians under the Guardians and Wards Act 1890 but they
can be the guardian under the Hindu Guardianship and Minority Act 1956.

CONCLUSION
The only statutes governing adoption in India is the Hindu Adoption and Maintenance Act 1956
and The Juvenile Justice Care and Protection of children Act 2000.
It is this Act that recognizes the adopted child as his/ her own children as a natural born
but rest of the other personal laws do not possess separate Act but they can adopt child under the
Guardians and Wards Act 1890 where the adopted child is not considered as his own child where
the child is given guardian up to 21years after that it is the discretion of the child to live with the
adopted parents or to live alone. So, therefore, there is a need for a uniform law on adoption.
Thousands of abandoned, orphaned and neglected children need families and innumerable
couples wish to adopt but in the absence of satisfactory legal provisions, the children remain
homeless and people desiring to adopt cannot do so.
Since the Juvenile Justice Act is a secular law so the Hindus, Christians and the Muslims
can adopt their child and there is no such restrictions and therefore, there is a great need of
Uniform Civil procedure code only through which problems regarding adoption is solved. So the
concept of Juvenile Justice Act was brought up.
Finally, by concluding that “adoption is a noble cause which brings happiness to kids
who were abandoned or orphaned”. This gives a chance for the human side of civilization to
shine through. It is a beneficial program where the child is treated as the natural born child and
given all the love, care and attention.
At the same time, it fills the void in the parents who yearned for kids, their laughter and
mischief echoing off the walls of a home. However, a few changes could be made to make all the
laws regarding adoption a little uniform.

“Adopting one child won’t change the world; but for the child, the world will change”

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 BIBLIOGRAPHY
PRIMARY SOURCES
STATUES:

1. The Guardian and Wards Act 1890

2. The Hindu Adoption and Maintenance Act 1956

SECONDARYSOURCES
BOOKS:
1. Agnes Flavia, Family Law and Constitutional Claims, Oxford University Press, 2nd
Revised Edition, New Delhi, 2011.
2. B.M. Gandhi, Family Law 1, EBC Publication, 4th edition.
3. Diwan Paras, Family Law, Allahabad Law Agency.
4. Kusum, Family Law 1, Lexis Nexis Publication, 4th edition.

WEBSOURCES:
1. http://www.lawctopus.com/academike/legalframework-governing-adoption-laws-india/
2. http://www.aimjf.org/download/Documentation_EN/JUVENILE_JUSTICE_LAW_AND
_CARA_-13.01.2016.pdf.
3. http://www.prsindia.org/theprsblog/?p=3610
4. http://www.legalserviceindia.com/article/l327-Adoption-under-Juvenile-Justice-Act.html.
5. http://www.nja.nic.in/2.%20Hindu%20Adoption%20Law%20and%20Judicial%20interpr
etation-%20Deepak%20KR.Verma.pdf.

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