The law relating to Adoptions in India

In our country, many matters relating to marriage, family and children are governed entirely by religion specific laws. For Muslims, for example, the Sharia law is applicable, which is derived entirely from Islamic texts on the interpretation of the Quran.

Adoption is one such matter which is entirely governed by religion specific laws. And as per law in India, only Hindus can adopt a child as their own child. A Muslim or a Christian can become the legal guardian of a child, but only a Hindu can adopt a child. (In Indian law, the word ‘Hindu’ includes Buddhists, Jains and Sikhs as well, but not Parsis and Jews.)
This may sound unfair, but the reason is that Islam does not recognize adoption, and neither do the personal laws of Christianity, Judaism or Zoroastrianism. In Mohammed Allahdad Khan v. Mohammad Ismail, it was held that there was nothing in the Mohammedan Law similar to adoption as recognized in the Hindu System. Hinduism is the only religion that gives its followers the freedom to adopt and give their child in adoption. An exception made is that a Muslim or Christian, or even a Parsi or Jew, can adopt from an orphanage, as long as the consent of the Court has been taken.

Which law applies?

A Hindu adoption is governed by the Hindu Adoption and Maintenance Act, 1956. Before this Act was introduced, only a male child could be adopted, but the Act makes a provision that a female child can also be adopted.

Who can adopt?

For an adoption to be valid, the person adopting has to be capable of adopting, and there are specific rules as to who is capable of adopting a child. The law is quite simple and equitable.

If you are a man, you must have attained majority (unless you have a legal guardian, you attain majority the moment you reach the age of 18) and must not be mentally unsound. If you are married, you must take your wife’s consent, unless has converted from Hinduism to another religion, or has been declared by a Court to be mentally unsound. Finally, although this is very rare, if your wife has completely renounced the world, you need not take her consent either.
For women, the requirements are quite similar. If you are married, then the adoption must be by your husband. A married woman cannot adopt, her husband alone can adopt, after she gives him her consent. If your marriage has ended, or your husband has passed away, or converted out of Hinduism, or renounced the world, you can adopt independently. Also, like for women, if your husband has been declared mentally unsound, you need not take his consent and can adopt independently. (Even if you think so, it doesn’t matter! A Court must declare him so)

Who can give a child on adoption?

Only the father, mother or guardian of the child can give it on adoption. However, if the child is an orphan, or if his/her parents have renounced the world, or abandoned the child, or become mentally unsound, the legal guardian of the child can give it on adoption. This adoption has to be approved by the Court, which will check that the adoption is for the welfare of the child. If the child is old enough to understand and give its opinion, the Court will even ask the child whether he/she wants to be given on adoption.

The husband can adopt, provided his wife consents, and the same requirements mentioned above for a man adopting a child apply to a husband giving his child on adoption. (should not have converted out of Hinduism, renounced the world or been declared mentally unsound.) A mother can give her child in adoption independently only if her marriage has ended or husband has died, renounced the world, converted or become mentally unsound.

Finally, adoption is an act driven by a desire to bring up a child and show it love and affection. The human element is critical in adoption, so a Court will not allow an adoption where there is even a hint of reward or compensation, unless the Court sanctions it.

Can any child be adopted?

After the Hindu Adoptions and Maintenance Act, 1956, both boys and girls can be adopted. However, only a Hindu child can be adopted, not one born to Muslim, Christian, Jewish or Parsi parents. Also, the child must be less than fifteen years of age, unless there is a local custom in that community according to which even older children can be adopted. Naturally, (unless there is a custom to the contrary) a married person cannot be adopted. A child which has been adopted once, cannot be adopted again.

Finally, are there any other things I must be aware of?

Yes, just a few. If the adoption is of a son, the man or woman adopting him must not have a Hindu son, son’s son or son’s son’s son living at the time of adoption. If the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son’s daughter living at the time of adoption. This can get a little confusing, but read it slowly and carefully, and it is actually quite simple.

If the adoption is by a male and the person to be adopted is a female, the man adopting must be at least twenty one years older than the person to be adopted. This is to discourage sexual relationships between the man and the girl being adopted. Similarly, if the adoption is by a female and the person to be adopted is a male, the adoptive mother must be at least twenty one years older than the person to be adopted.

As long as these requirements are met, you can adopt in peace. An adoption, even after completing these requirements, is complete once the child is actually physically taken by the adopting parents. A ceremony called data homam is usually performed, but the validity of the adoption does not depend on this.

If you wish further to ‘Get legal advice’ on adoption, log on to http://www.vakilsearch.com and get an experts advice. It’s easy and affordable, and very convenient.

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