Adoption under the Hindu Adoptions and Maintenance Act
Family Law I - Hindu Law · Unit V · Topic 19 of 20 · 7 min read
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1. From the old law to the 1956 Act
Classical Hindu law saw adoption as a religious act, to secure a son who could offer pinda and continue the line. Only a son could be adopted, only a male could adopt (a widow adopted to her deceased husband, with his authority or that of his kinsmen), and the ceremony of datta homam was often required. The Hindu Adoptions and Maintenance Act, 1956 (HAMA) secularised adoption: daughters can be adopted, women can adopt in their own right, and the religious ceremony is unnecessary.
2. Capacity of a male Hindu: section 7
Any male Hindu who is of sound mind and is not a minor may adopt a son or a daughter. If he has a wife living, he needs her consent, unless she has completely and finally renounced the world, has ceased to be a Hindu, or has been declared by a competent court to be of unsound mind. If he has more than one wife, the consent of all is needed.
3. Capacity of a female Hindu: section 8
As originally enacted, section 8 allowed only an unmarried woman, a widow, a divorcee, or a wife whose husband had renounced the world, converted or been declared of unsound mind, to adopt. A wife whose husband was alive could not adopt even if living apart from him: Brajendra Singh v. State of M.P., 2008 INSC 43, (2008) 13 SCC 161, where the Court noted the hardship and the case for amendment.
The Personal Laws (Amendment) Act, 2010 recast section 8. Now any female Hindu of sound mind who is not a minor has the capacity to adopt a son or daughter; but if she has a husband living, she needs his consent, subject to the same three exceptions as in section 7. Male and female capacity is now symmetrical.
4. Who may give in adoption: section 9
- Only the father, the mother or the guardian of the child can give it in adoption.
- Since 2010, the father and the mother have an equal right to give a son or daughter in adoption, but one cannot do so without the consent of the other, unless the other has renounced the world, ceased to be a Hindu, or been declared of unsound mind.
- The guardian may give the child, with the previous permission of the court, where both parents are dead, have renounced the world, have abandoned the child, have been declared of unsound mind, or where the parentage is not known. The court must be satisfied that the adoption is for the child's welfare and that no payment has been made.
5. Who may be adopted: section 10
The child must (i) be a Hindu; (ii) not already have been adopted; (iii) not be married, unless a custom or usage applicable to the parties permits the adoption of married persons; and (iv) not have completed fifteen years, unless such a custom permits it.
6. Other conditions: section 11
- (i) To adopt a son, the adopter must not have a Hindu son, son's son or son's son's son (legitimate or adopted) living.
- (ii) To adopt a daughter, the adopter must not have a Hindu daughter or son's daughter living.
- (iii) A male adopting a female must be at least twenty-one years older.
- (iv) A female adopting a male must be at least twenty-one years older.
- (v) The same child may not be adopted simultaneously by two or more persons.
- (vi) The child must be actually given and taken in adoption by the parents or guardian with intent to transfer it from the family of birth (or, for an abandoned child or one of unknown parentage, from the place where it was brought up) to the adoptive family. Datta homam is not essential.
The giving and taking is the essence of adoption. In Lakshman Singh Kothari v. Rup Kanwar, 1961 INSC 111, AIR 1961 SC 1378, the Court held that there must be a physical act of giving and receiving; the parent may delegate the physical act, but not the right to give.
7. Effects of adoption: section 12
An adopted child is deemed to be the child of the adoptive father or mother for all purposes from the date of the adoption, and all ties with the family of birth are deemed severed and replaced by those created in the adoptive family. Three provisos:
- (a) the child cannot marry any person whom he or she could not have married if he or she had continued in the birth family;
- (b) property vested in the adopted child before the adoption continues to vest, subject to any obligations attached to it, including the obligation to maintain relatives in the birth family;
- (c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.
A child adopted by a widow becomes the child of her deceased husband as well, and so a member of his family: Sawan Ram v. Kala Wanti, 1967 INSC 114, AIR 1967 SC 1761.
The relation-back doctrine abolished. Under the old law, an adoption by a widow was deemed to relate back to the date of her husband's death, as if the son had been in existence then. The adopted son could therefore divest relatives in whom the estate had meanwhile vested, sometimes decades later, which made titles uncertain. Proviso (c) to section 12 ends this. The adopted child takes from the date of adoption and cannot unsettle estates already vested.
8. Sections 13 to 17
- Section 13. Adoption does not deprive the adoptive parents of their power to dispose of their property by transfer or will, unless there is an agreement to the contrary.
- Section 14. Where a man with a wife adopts, she is the adoptive mother; if he has several wives, the senior-most in marriage is the adoptive mother and the others are stepmothers. If a bachelor or widower adopts and later marries, the wife is the stepmother; if a widow or unmarried woman adopts and later marries, the husband is the stepfather.
- Section 15. A valid adoption cannot be cancelled by the adoptive father or mother or any other person, nor can the adopted child renounce his or her status and return to the family of birth.
- Section 16. Where a registered document signed by the person giving and the person taking the child is produced, the court shall presume the adoption was made in compliance with the Act unless it is disproved.
- Section 17. No person shall receive any payment or reward in consideration of an adoption; contravention is punishable with imprisonment up to six months, or fine, or both.
HAMA applies only to Hindus. Any person, of any religion, may adopt under the Juvenile Justice (Care and Protection of Children) Act, which operates alongside personal law: Shabnam Hashmi v. Union of India, 2014 INSC 111, (2014) 4 SCC 1. The Juvenile Justice Act, 2015 leaves adoptions under HAMA untouched.
9. Problem
A married Hindu woman, living apart from her husband for ten years but not divorced, adopts a twelve-year-old girl in 2026 without his consent. She has a son of her own.
Issue. Is the adoption valid?
Law. Sections 5, 6, 8 (as amended in 2010), 10 and 11.
Application. She has capacity under section 8, but because her husband is living and none of the three exceptions applies, his consent was required. Separation does not dispense with it. The child is under fifteen and unmarried, and having a son does not bar adopting a daughter.
Conclusion. The adoption fails for want of the husband's consent and is void under section 5. Before 2010 she could not have adopted at all (Brajendra Singh).
How this is examined
As an essay: “Explain the essentials of a valid adoption under HAMA” or “Who may adopt, who may give and who may be adopted?” Follow sections 6 to 11 in order, then section 12. As short notes: effects of adoption, the doctrine of relation back, or section 15. Problems test consent of the spouse and the section 11 bars.
Now try the real questions: Family Law I - Hindu Law past question papers.