National Law University of Study and Research in Law, Ranchi

Family Law – I

Hindu Women’s Right to Adoption

Submitted by: Submitted to:

Arnold Runda Dr. Sangita Laha

IIIrd Semester, Sec-A Associate Professor

Roll No.- 858 NUSRL, Ranchi

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1. Title: Hindu Women’s Right to Adoption

1.1 Introduction

‘Adoption’, the very concept comes in our mind with a smiling picture of a child, the most
beautiful and innocent creation of nature. The concept has a flavour of antiquity. Every living
creature whether it belongs to animal or plant kingdom, has been endowed with inherent
capacity to produce similar animals or plants through ‘reproduction’. One of the most
important purposes of the process of reproduction is to maintain existence and update one’s
lineage or the line of inheritance

Our old Shastric Hindu law gave paramount importance to the birth of a male child. Birth of a
male child in a family was believed to bring with itself the most valuable and precious thing
‘Moksha’ (salvation) not only to his father but to all his paternal forefathers. As our old
Hindu law did not permit the wife or a daughter to perform the funeral rites of a man or
woman and to perform ‘Pinddan’ (offering funeral cakes and libations of water) and thereby
made her unable to redeem the deceased and his forefathers from hell or to save them from
the bindings of cycle of rebirth; birth of a girl child was inauspicious. ‘Moksha’ (salvation)
was so much embedded in the cardiac pulses of the old Hindu people that this need actually
gave birth to the concept of ‘adoption’ for those parents who were unfortunately sonless.
After ‘salvation’, comes the concept of ‘inheritance’ which also played important role in the
gradual growth and maturity of the concept.

Our religious epics are well acquainted with the examples of babies that were born in one
place and brought up elsewhere by non-biological parents. ‘Sita’ in the ‘Ramayana’ and
‘Krishna’, ‘Karna’, in the ‘Mahabharata’ are some of the glaring examples. But generally
during older days the concept of adoption was confined within the limits of family, gotra,
sapinda etc. With the independence of India in the year 1947 and coming of codified and
reformed Hindu law on adoption in the year 1956, that is, the Hindu Adoptions and
Maintenance Act (HAMA), any person who comes within the definition of the word
‘Hindu’1is now able to take a child in adoption. Contrary to old Hindu law, now a female
Hindu can also validly adopt a child to herself. Also, a girl child is now eligible, unlike the
old Hindu law, to be adopted by interested parents.

1
Section 2, Hindu Adoptions and Maintenance Act, 1956.

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1.2 Literature Review

Sivaramayya, B. (1962). The Hindu Adoptions and Maintenance (Amendment) Bill,

1962. Journal of the Indian Law Institute, 4(3), 461-463.

The Bill is welcome in that it marks a departure from the tardy tradition of Indian legislation
in rectifying lacunae in the enactments. The object of the Bill is to cure a certain lacuna in the
Hindu Adoptions and Maintenance Act, 1956, which hinders the adoption of orphans,
illegitimate and abandoned children who are being brought up by orphanages and institutions.

S. Aarthi Anand, & Prema Chandra. (2002). Adoption Laws: Need for
Reform. Economic and Political Weekly, 37(38), 3891-3893.

The adoption controversy that erupted last year drew attention to the many ills that clog the
wheels of adoption in India. But merely punishing the guilty will not ensure sweeping
changes. At the very outset, the need for change must recognise the disparities that exist, as
for instance, the procedural differences between in-country vs inter-country adoption
processes. It must also involve all actors in the system including the children themselves.

1.3 Research Objective

a) To study post-constitutional status of women and laws of adoption

b) To study the position of Hindu Women for Adoption

1.4 Significance of the Research

An Indian family was governed by patriarchy in early India. But with the changing in time,
the status of women has also evolved. With the whole world celebrating International
Women’s Day, it would be easy to analyze the position and space Indian women occupy
today. With women participating in nationalist movements, to being pushed into the domestic
household space, to their resurgence as super-women today, women in India have seen it all.

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There have been innumerable debates about gender in India over the years. Much of it
includes Rwomen’s positing in society, their education, health, economic position, gender
equality etc. India has seen an increased percentage of literacy among women, and women
are now entering professional fields, the practices of female infanticide, poor health
conditions and lack of education still persisting still continue. Even the patriarchal ideology
of the home being a woman’s ‘real domain’ and marriage being her ultimate destiny hasn’t
changed much. The matrimonial advertisements, demanding girls of the same caste, with fair
skin and slim figure, or the much-criticised fair and lovely ads, are indicators of the slow
changing social mores.

So, the goal of the researcher to analyse the pre and post Constitutional effect of status of
women, and to study the right to adoption of Hindu women which has now been accepted in
the Hindu society.

1.5 Research Methodology

Only secondary data and no primary data are used while doing this research study. Relevant

books, reputed journals, Government reports, periodicals, etc. are referred in the course of
this

research study. The study is based on some reports prepared by reputed National and

International Organizations. Published reports, news reports of news channels, articles in

journals and newspapers, websites, blogs are used.

1.6 Research Hypothesis

The post-constitutional effected the status of women to a greater extent. Women who were
made to regulate household dominated by the male in a patriarchal society, now have their
own identity. Hindu Women, after the independence of India, and formation of Modern
Hindu Law, now have their rights including right to adoption.

2. Post-Constitutional Status of Women and Laws of Adoption

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2.1 Post-Constitutional Effect of Hindu Law

Long before independence the theme on which Mahatma Gandhi wrote repeatedly was the
need to improve the status of Indian women. He emphasized the fact that women should not
suffer from any disability or discrimination. He respected their “personal dignity” without
“belittling their roles as mothers and wives” and gave women with men “equal tasks to
perform in the achievement of freedom”.2 The Mahatma said that “women have been
suppressed under custom and law for which man was responsible and in the shaping of which
she had no hand. Rules of social conduct must be framed by mutual co-operation and
consultation. Legislation has been mostly done by men and has not been always fair.”3

The status of women in British India and the Princely states was worse and the various
practices like ‘sati’, ‘widowhood’, ‘child marriage’, and ‘female infanticide’ were all seen as
reflective of the backwardness of Indian society and were therefore targeted for change. The
role of women in the National movement and the rise of the women movement during the
Pre-independence days ensured that the Constitution of India and independent India would
see a change for the better in the status of women.

The departure of the British in 1947 brought freedom to India and the independent India
adopted a very forward-looking Constitution as well as a complex legal system. India’s first
Prime Minister, Pd. Jawaharlal Nehru worked hard to unify the newly independent India by
proposing the reformation and codification of Hindu Personal law. Nehru completed
codification and partial reform and at the end, a series of four major pieces of personal law
legislations were passed in 1955-56: the Hindu Marriage Act, 1955; the Hindu Succession
Act, 1956; the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and
Maintenance Act, 1956.

The Hindu Marriage Act came into force on 18th May 1955. It amends and codifies the law
relating to marriage among Hindus. Also, considerable modifications and amendments were
brought about by the Marriage Laws (Amendment) Act of 1976 in the Hindu Marriage Act,
1955 to make it more effective and women oriented. Unlike Shastric Hindu law, now
intercaste marriage between persons of different castes – Brahmin, Kshatriya, Vaishya and
Sudra or persons professing the Hindu, Buddhist, Jain or Sikh religion is not prohibited. 4

2
Patel, Sujata, Economic and Political Weekly, “Construction and Reconstruction of Woman in Gandhi”,
February 20, 1988, p. 377.
3
Nandela, Krishnan, “Gandhi on Women’s Empowerment”, www.mkgandhi.org/articles/women.htm

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Monogamy has been made a rule now.5 Bigamy is made punishable as an offence under IPC.6
Now, a valid Hindu marriage is considerably simplified. 7 Marriage according to Shastric
Hindu law was only a sacrament and was not a contract and therefore, a marriage solemnized
during the minority of either party does not render the marriage invalid.8

2.2 Change in Status of Women

When India got its independence, the participation of women nationalists was widely
acknowledged. When the Indian Constitution was formulated, it granted equal rights to
women9, considering them legal citizens of the country and as an equal to men in terms of
freedom and opportunity. The sex ratio of women at this time was slightly better than what it
is today, standing at 945 females per 1000 males. Yet the condition of women screamed a
different reality.

If one looks at the status of women then and now, one has to look at two sides of the coin;
one side which is promising, and one side which is bleak. They were relegated to the
household, and made to submit to the male-dominated patriarchal society, as has always been
prevalent in our country. Indian women, who fought as equals with men in the nationalist
struggle, were not given that free public space anymore. They became homemakers, and were
mainly meant to build a strong home to support their men who were to build the newly
independent country. Women were reduced to being second class citizens. The national
female literacy rate was an alarmingly low 8.6%. The Gross Enrolment Ratio (GER) for girls
was 24.8% at primary level and 4.6% at the upper primary level (in the 11-14 years age
group). There existed insoluble social and cultural barriers to education of women and access
to organised schooling.

4
Mulla, Principles of Hindu Law, Vol.-11, ISBN: 978-81-8038-144-7, Lexis Nexis Butterworths, New Delhi,
Twentieth Ed., p. 14.
5
Section [5 (1)] of The Hindu Marriage Act, 1955 says “neither party has a spouse living at the time of the
marriage;”
6
Section 17 of the Hindu Marriage Act, 1955 and Sections 494 and 495 of the Indian Penal Code, 1860.
7
Sections 5 and 7 of the Hindu Marriage Act, 1955.
8
Mulla, Principles of Hindu Law, Vol.-1, ISBN: 978-81-8038-144-7, Lexis Nexis Butterworths, New Delhi,
Twentieth Ed., p. 747.
9
Article 14of the Constitution of India, 1950 says “Equality before law The State shall not deny to any person
equality before the law or the equal protection of the laws within the territory of India Prohibition of
discrimination on grounds of religion, race, caste, sex or place of birth”

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Today names like Arundhati Roy, Anita Desai, Kiran Desai, Shobhaa De, Jhumpa Lahiri can
put any other writer to shame. Today, the modern woman is so deft and self-sufficient that
she can be easily called a superwoman, juggling many fronts single-handedly. Women are
now fiercely ambitious and are proving their metal not only on the home front, but also in
their respective professions. Women in Indian are coming up in all spheres of life.

2.3 Laws of Adoption

The Personal Laws (Amendment) Act, 2010, now amends section 19(b) of the Guardians and
Wards Act, 1890 and includes the mother along with the father as a fit person to be appointed
as guardian. The Act provides for the mother to be appointed as a guardian along with the
father so that the courts do not appoint anyone else in case the father dies.

Adoption laws in India country falls within the arena of personal laws and varies from
religion to religion. Adoption is not permitted among Muslims, Christians, Parsis and Jews in
India. Persons belonging to these communities who are desirous of adopting a child can take
a child only in guardianship under the provisions of the Guardians and Wards Act, 1890. This
Act confers only a guardian- ward relationship to the child unlike the status given to a child
born biologically to a family. Once a child under foster care becomes major, he/she is free to
break away all his connections.

The adoption under Hindu law is governed by the Hindu Adoptions and Maintenance Act,
1956. The said Act applies only to the Hindus which are defined under Section 2 of the Act
and includes any person, who is a Hindu by religion including a Virashiva, a Lingayat or a
follower of Brahma, Prathana or Arya Samaj or a Buddhist, Jaina or Sikh by religion, to any
other person who is not a Muslim, Christian, Parsi, or Jew by religion. A person who has
converted to these religions is also considered Hindu under this Act.

Another Act which deals with the adoption of child by non-Hindu parents is the Juvenile
Justice Act of 2000. The enactment of the Juvenile Justice (Care and Protection of Children)
Act, 2000 and its subsequent amendment in 2006 is definitely a significant step of our
legislature towards recognition of adoption of orphan, abandoned and surrendered children by
people irrespective of their religious status. Under Section 41(6) of the Juvenile Justice Act,
2000, a child can be given in adoption to the following persons:

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 a) A person irrespective of his/her marital status.
b) The parents to adopt a child of the same sex irrespective of the number of existing
biological sons or daughters.
c) The childless couples.

Under Indian law, non-resident Indians or foreign nationals are also allowed to adopt a child.
They can apply under the Guardians and Wards Act, 1890 and if court deems it fit, he or she
is appointed the child’s guardian. The foreign nationals are then allowed to take the child to
his or her own country and adopt him or her as per the laws of his or her country. But citizens
of countries which do not allow adoption of children born in other countries cannot apply to
adopt children in India.

3. Position of Hindu Women for Adoption

3.1 Position of Women under different Personal Laws

Although the Indian Constitution guarantees all citizens equal rights irrespective of gender
and religion, but these rights do not extend to personal laws. In fact, still India does not have
a Uniform Civil Code. In family matters, legal decisions are based on religious law. Modern
Hindu law refers to one of the personal law systems of India along with similar systems for
Muslims, Parsis, and Christians.

For example, Muslims in India are governed by the Muslim Personal Law (Shariat)
Application Act of 1937. Marriage under the Muslim law is a contract with the right of
polygamy available to a Muslim man. What is more? A Muslim woman cannot marry a non-
Muslim whereas a Muslim man can do so. A husband has also a partial unilateral right of
divorce. He can utter the word ‘talaq’ thrice even without stating the reasons and in the
absence of his wife.10 After coming into force of Dissolution of Muslim Marriage Act, 1937,
now, a Muslim woman is able to take divorce on various grounds such as, absence of
husband, failure to perform marital obligations; impotency of husband; insanity; leprosy or
venereal diseases ; repudiation of marriage by wife; cruelty of husband and other grounds
such as, Ila, Zihar, Khula, Mubarat and Tafweez which are recognized as valid under Muslim
law.11

10
Mohd. Shamsuddin v. Noor Jahan, AIR 1955 Hyd. 144
11
Ahmad, Aqil, Mohammadan Law, Central Law Agency, 1995 Ed., p. 116.

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Discrimination against women is expressly evident from the treatment accorded to the Indian
Christian women. Under Section 10 of the Indian Divorce Act (IDA) 1869, while a Christian
man may be granted a divorce on the grounds of adultery, a woman is required to prove an
additional marital offence like change in religion; a form of marriage with another woman;
incestuous adultery; rape, sodomy or bestiality and bigamy with adultery.

3.2 Difference between the Hindu Adoptions and Maintenance Act, and the
Guardians and Wards Act

There is no general law of adoption of children. As adoption is legal affiliation of a child it

forms the subject matter of personal law. Muslims, Christians and Parsis have no adoption
laws and they have to approach the court under the Guardians and Wards Act, 1890. Hindu
are governed in the matter of adoption by the Hindu Adoptions and Maintenance Act, 1956.
As personal laws of Muslims, Christians, and Parsis does not recognize adoption, they can
only take child in ‘guardianship’ under the provisions of the Guardians and Wards Act, 1890
(GAWA).

Unlike the child adopted under the Hindu Adoptions and Maintenance Act (HAMA) 1956,
GAWA only confers a guardian- ward relationship. The process makes the child a ward not
an adopted child. They do not have any automatic inheritance rights; adoptive parents have to
leave whatever they wish to bequeath to their children through a will which can be contested
by any blood relative. The guardian and ward relationship come to an end after the ward
attaining the age of majority that is twenty-one. The Act does not confer the child the same
status as a child born biologically to the family.

3.3 Position of Hindu Women under the Hindu Adoptions and

Maintenance Act, 1956

Coming to central point to discussion, that is, the adoption rights given to Hindu women
under HAMA. Section 7 and Section 8 of the HAMA deals with capacity of persons who
may lawfully take a son or daughter in adoption. The eligibility criteria for Hindu Woman to
take a son or daughter in adoption are:

a) The Hindu Woman should be of unsound mind.

b) The Hindu Woman should not be a minor.

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 c) The Hindu Woman is not married can adopt a child.
d) In case of a married Hindu Woman, whose marriage has been dissolved whose
husband is dead or has completely 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.

After comparing Section 7 of the HAMA with its Section 8, we find that there exists a wide
gap between these sections which discriminates between a married Hindu male and a married
Hindu female. Under Section 7 of the said Act, a major, sound-minded male Hindu has got an
unconditional absolute right to adopt a child. If he is married, then there is a rider that for
valid adoption to take place free consent of wife or wives (if more than one wife is living at
the time of adoption) living at the time of adoption will be an essential condition precedent.
This consent is not necessary if the wife has renounced the world and or Hinduism
completely and finally or she has been declared by a court of competent jurisdiction to be of
unsound mind.

After scanning Section 8 of the same Act, we will see a different picture. A major, sound-
minded female Hindu can take a child in adoption only if she is unmarried; widow or
divorcee. There is no such thing like a major, sound minded married female Hindu can adopt
a child with the free consent of her husband and also that this consent is not required if the
husband has renounced the world or the Hindu faith or has been declared to be of unsound
mind by a court having competent jurisdiction to do so (clause (c) of the Section 8). We can
cite here the famous Brajendra Singh’s case12 which projects some highly emotional and
sensitive aspects of human life. In this case honourable Supreme Court observed that there
was no dispute that Mishri Bai was a disabled lady living separately from her husband right
from the day of her marriage and in fact had been looked after by Brajendra Singh whom she
adopted. The court observed that all the evidence showed that husband and wife had been
staying separately for a very long time and that Mishri Bai was living a life like a divorced
woman. The court categorically declared that there was a conceptual and contextual
difference between a divorced woman and one who was living the life like a divorced
woman. Mishri Bai may have been living separately since the time of her marriage but there
was no dissolution of marriage that is, divorce. Thus, Mishri Bai did not have the capacity to
adopt under HAMA. In a recent decision on 4th September, 2006, it was held by the Kolkata
High Court that during subsistence of a marriage a wife has no right to adopt but only to give
consent in adoption process if taken by her husband. In this case husband never took any
12
Brajendra Singh v. State of M.P. AIR 2008 SC 1056.

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initiative for decision to adopt. He was only present. So, adoption made by the married lady
was held invalid.13

Denial of this right to adopt a child to any married female Hindu (till the passing of the
Personal Laws (Amendment) Act, 2010); it seems to me is a clear violation of Fundamental
Rights guaranteed by the Constitution as well as the precious rights guaranteed by the
Universal Declaration of Human Rights and other various international documents to which
India is also a signatory.

4. Findings and Suggestions

a) India after getting its independence, has developed its laws. The modern Hindu Law
in particular has removed the suppression of patriarchy from the Hindu families.
b) Women have become ambitious and independent of old Hindu Laws and customs.
c) According to the modern Hindu Laws, intercaste marriage is allowed among the
Hindus.
d) Women now have the right to adopt a male or a female child if she fulfils the
conditions of Section 7 and 8 of the Hindu Adoptions and Maintenance Act.
e) Though the Constitution provides equality among both the genders, i.e. males and
females, the Personal Laws are violation of Fundamental Rights guaranteed the
Constitution of India.
f) I do not find any intelligible differentia which have a rational nexus to the object
sought to be achieved by the Act.

5. Conclusion

Thus, standing at the door of 21st century I strongly put my objection towards the highly
discriminatory, unjust and inhuman provision that is clause (c) of Section 8 of the Hindu
Adoptions and Maintenance Act, 1956 which deprive a married Hindu woman to adopt a
child of her choice independently and thereby prevent to make herself a part of decision
making process right from the smallest unit of family to the national as well as international
level. Although, the very Section 8 (c) has been amended through the enactment of the
Personal Laws (Amendment) Act, 2010 but the said Act needs proper reconsideration to
make it suitable in the true sense of an amended beneficial legislation.
13
Smt. Malati Roy Chowdhury v. Sudhindranath Majumdar and others, AIR 2007, Cal 4, (2007), CALLT 323

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6 References

Primary Sources:

 Quran and Ijma

 Rig Veda

Secondary Sources:

 Legislations - (a) The Hindu Adoptions and Maintenance Act, 1956.

(b) The Hindu Marriage Act, 1955.

(c) The Guardians and Wards Act, 1890.

(d) Indian Divorce Act, 1869.

(e) The Indian Penal Code, 1834.

(f) The Muslim Personal Law (Shariat) Application Act, 1937.

(g) The Juvenile Justice Act, 2000.

(i) The Personal Laws (Amendment) Act, 2010.

(j) The Constitution of India, 1949.

 Journals:
a) Sivaramayya, B. (1962). The Hindu Adoptions and Maintenance
(Amendment) Bill, 1962. Journal of the Indian Law Institute, 4(3),
461-463.
b) S. Aarthi Anand, & Prema Chandra. (2002). Adoption Laws: Need for
Reform. Economic and Political Weekly, 37(38), 3891-3893.
c) Patel, Sujata, Economic and Political Weekly, “Construction and
Reconstruction of Woman in Gandhi”, February 20, 1988, p. 377.
d) Nandela, Krishnan, “Gandhi on Women’s Empowerment”,
www.mkgandhi.org/articles/women.htm.
 Books:

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a) Diwan, Paras; Muslim Law in Modern India,213 (9th edn., Allahabad
Law Agency, Allahabad, 2000).
b) Mulla, Principles of Hindu Law, Vol.-11, ISBN: 978-81-8038-144-7,
Lexis Nexis Butterworths, New Delhi, Twentieth Ed.

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