© Ashok Wadje

Teaching Handout No. (3): Law of Adoption

Family Law-II
Semester-IV, Batch 2012-17
Course in-charge: Mr. Ashok Wadje

 Nature & Concept:

Transfer of Custody of a child-fiction of law-deemed to be born naturally.
With full parental obligation attached to it and vice versa.
Mostly based on religious tenets and customary rites.
For certain purposes: religious, cremation, succession and continuation of race.
 Approaches to Adoption:
Religious.
Customary.
Secular/Legal: opportunity for childless couple and for destitute child (Philips Alfred
Malvin Vs. T.J. Gonsalvis and Ors MANU/KE/0802/1998)
 Aim of the Adoption Law:
Certainty.
Prevention of misuse.
Confirming status on the legitimate.
Opportunity to parties (who are otherwise unable to have their own child and also to
a child who is destitute, so as to get legitimacy).
 Law of Adoption:-H.A.M.A., 1956
Requisites of a valid adoption: primary requirements and secondary requirements.
Primary Requirements:
1. Qualification
2. Competency of parties to: TAKE, GIVE & to be TAKEN in adoption.
Secondary Requirements:
1. Procedure/Formalities.
2. Other requisites & prohibitions.
Effect of adoption: STATUS/RIGHTS & LIABILITIES/PROPERTY CUM OWNERSHIP-
DEEMED EFFECT-FICTION OF LAW/SEVERANCE & REPLACEMENT-LEGAL TIES.
 Inter-country Adoption:
Law for prevention of misuse, trade and trafficking in inter-country adoption.
Lakshmikant Pandey V/s Union of India (MANU SC 0054/1984).
The Hague Convention of 29 May 1993 on Protection of Children and Co-operation in
Respect of Inter-country Adoption (Hague Convention on Adoption).
© Ashok Wadje

HINDU ADOPTION & MAINTENANCE ACT, 1956

 LEGAL RECOGNITION OF CONCEPT OF ADOPTION:

REQUISTIES of valid adoption
Who may TAKE in adoption
Who may GIVE in adoption
Who may be TAKEN in adoption (Subject matter)
Other (misc.) Requisites of Adoption
 EFFECT of valid adoption: Key words-
Rights, Duties, Obligations, Immunities and entitlement
Fiction of Law-deemed provision
Severance & Replacement of Legal Ties
Vesting-ownership-Coparcenary interest etc.
 SCHEME OF THE ACT OF 1956:
Act talks about Adoption & Maintenance
Chapter -II talks about Adoption from Sec. 5 to 17.
SCHEME OF CHAPTER-II ACT OF 1956:
 Section 5: Adoption to be regulated by this (II) Chapter.
 Section 6: Requisites of a Valid adoption
 Section 7: Capacity of a MALE Hindu to TAKE in adoption
 Section 8: Capacity of a FEMALE Hindu to TAKE in adoption
 Section 9: Persons capable of GIVING in adoption.
 Section 10: PERSONS who may be adopted.
 Section 11: Other conditions of a valid adoption
 Section 12: Effects of adoption
 Section 13: Right of adoptive parents to dispose of their properties
 Section 14: Determination of adoptive mother in certain cases
 Section 15: Valid adoption not to be cancelled
 Section 16: Presumption as to registered documents relating to adoption.
 Section 17: Prohibition of certain payments.