Adoption in Hindu Law

Children are thought to be a source of joy, and the country's future is dependent on them. Meanwhile,
children born in India are pampered, cared for, and provided with all of the necessities for their overall
growth, while over 60,000 children are abandoned in India each year. It is a tragic state of affairs when
some of these children become victims of human trafficking and sexual abuse, while others are brought
to an adoption agency and given hope for a better life while waiting to be adopted. A parent's greatest
joy comes from having a child. Adoption seems to be the most efficient means of obtaining this
happiness.

Adoption is a wonderful option for single parents, childless adults, and homeless children alike. It allows
individuals who are not physically related to form a parent-child bond. The Hindu Adoption and
Maintenance Act 1956 is the only personal law in India that deals with adoption. Some personal laws,
such as Muslim, Parsi, and Christian, do not allow for adoption. This research paper examines other legal
guidelines relating to adoption, as well as the gaps and flaws in those provisions. It also discusses the
role of the judiciary in defining the adoption scenario in India.

Introduction

Adoption is a legal procedure in which a child is placed with a married couple or a single woman who
agrees to raise and care for the child. Adoption is a legal way for people who are not related by blood to
establish a parent-child relationship. This two-way method has aided in the conception of a child for
childless couples. Adoption is the formal process of putting an infant with a parent or parents other than
the biological parents for the rest of their lives.

The parental duties and rights of the parents are severed when a child is adopted, and those
responsibilities and rights are transferred to the adoptive parents. It is a globally recognised institution.
Adoption is stated in almost all religions and mythologies in some way. In today's world, the idea of
adoption has evolved from providing a child to the orphaned to providing a home to the homeless.

Adoption In Hindu Law

Only members of the Hindu community had access to adoption as a legal term. Also, where personal
laws permit such adoption for any part of the polity, there is an exception. A large portion of the
population could only serve as children's legal guardians. There have been many progressive
improvements as a result of the new concept's adoption. , such as female Hindu adoption, adoption
eligibility for girls, and so on. Because of our country's multicultural, multilingual, and multi-religious
sentiments, recognising all complexities and uniformly implementing an effective adoption policy has
been a difficult job.

With the rise of humanity, adoption will be used to ensure the right to family for orphaned, neglected,
and surrendered children; the process of adoption will have an effect on secular as well as religious
conditions. The main goal of adoption was to ensure that one's burial rights were carried out and that
one's lineage was preserved. Adoption has recently become the safest way for a child who has been
separated from his or her maternal family to re-establish a family. Various international human rights
treaties specifically state the constructive obligation to provide care and assistance to children.

Adoption rates in India have always been low, but they have decreased in recent years: According to the
government's Central Adoption Resource Authority (CARA) adoption statistics, there were 5,693 in-
country adoptions in 2010, but just 3,276 in-country adoptions in 2017-2018. These are appalling
statistics for a country with such a large population. According to the Indian Society of Assisted
Reproduction, there are actually just around 20000 parents waiting to adopt, compared to the 27.5
million couples actively seeking to conceive but suffering infertility.

Adoption Under Old Hindu Law

According to Old Law, a man could adopt a boy without the consent of his wife. But, a woman could not
adopt during life time of her husband or after his death except under authority given to her by the
husband or with the consent of his sapindas. The adopted son should be of the same caste. An
illegitimate boy or congenitally deaf and dumb boy could not be adopted. Only parents could give a boy
in adoption. A daughter could not be adopted. There was no age restriction between the adopter and
adoptee.

Adoption Under Modern Hindu Law

The Hindu Adoptions and Maintenance Act, made adoption a secular institution. The Act lays down
various provisions relating to Adoption (and Maintenance). The Act removed the restrictions under Old
Law. Under the Act, girl also can be taken in adoption.
Requisites Of A Valid Adoption

The person adoption (taking in adoption) must have capacity to do so and shall also have a right to take
in adoption

The person giving in adoption must have the capacity (and right) to do so.

The person adopted is capable of being taken in adoption

The adoption is made in compliance with the conditions in Chapter-II of the Act (The Hindu Adoptions
and Maintenance Act,1956)

Under Section 7 and 8 of the Hindu adoption and maintenance act deal with capacity of male and
female Hindu respectively to take In adoption

Under Section 9, the father, the mother or guardian can give a child in adoption; subject to certain
restrictions

Section 10 provides for the capacity of a child or person to be adopted

Effects/Consequences Of Adoption (Section 12)

After adoption, the adopted child becomes the aurasa son of his adoptive parents and gets disqualified
to perform Sradha, Pinda Karma of his natural parents. Section 12 of the Hindu adoptions and
maintenance act, 1956 deals with the effects/consequences of the adoption

An Adopted child is deemed to be the natural born child of his/her adoptive father/adoptive mother.

All the ties of the adopted child with the original family stand extinguished from the date of adoption
(i.e. Kinship disappears in the original family and is born in the adaptive family). This rule is subject to
the following exceptions:
The Child cannot marry any person, whom he/she could not have married prior to the adoption.

The property vested in the child prior to the adoption shall continue to vest, subject to the obligations.

The adopted child shall not divest any person in the adoptive family of any estate, which is vested in
him/her before the adoption. (i.e. the adoption of child does not affect the rights and the members of
the adoptive family).

Under Section 13 of the Hindu Adoptions and Maintenance Act, 1956 makes provisions for the Ante-
Adoption Agreement.

Ante-Adoption agreement means “An agreement before the adoption. It is entered into between the
natural parent (person giving the child in adoption)” and the adoptive parent (person taking the child in
adoption) before the adoption in regard to the rights of the adoptive child in the property of the
adoptive parent. It protects the interests of the child (to be given in adoption) in regard to the property
of the adoptive parent.

Registration of Adoption:

Section 16 of the act, provides for the registration of adoption with Registrar of documents. If the
adoption is registered the registered instrument duly signed by both the parties serves as a piece of
evidence, but not conclusive proof of the evidence.

The Doctrine Of Factum Valet

The maxim “Quod fieri non debris factum valet or the Doctrine of Factum Valet”, is a Latin maxim, which
means “what ought not be done is valid, when done”

After adoption, the child becomes the aurasa (naturally born son of the adoptive parents) and also gets
disqualified to perform Sradha Karma, Pinda Karma or Kanyadan of natural parents. In case, there is no
other person competent to perform the ceremonies, shastras permit the adopted son to perform the
Sradha karma, Pinda Karma and Kanyadan.
This is known as “Factum Valet”. This doctrine was recognized both by the Mitakshara and Dayabhaga
Schools. When there is a rule, which governs an act (not to be done) and the act is done, it cannot be
rendered in invalid. This doctrine does not have universal application since every prohibited act, when
done cannot be ratified. The doctrine applies where there is no fraud or force. Under the Hindu Law, this
doctrine gets recognition mainly in the Law of Marriage and Law of Adoption.

Effects Of Adoption Before The Act,1956:

Before the Act, the doctrine of relation back was in operation.

The Doctrine Of Relation Back

Adoption confers rights on the child w.e.f. the date of adoption. This position was the same in the old
law also. But under old law, when the adoption was made by a window, the adoption would come into
force from the date of the of the death of her (widow’s) husband.

This doctrine gives retrospective effect to adoption by a window under the old law. In other words, all
the rights pf the adoptee (person taking the son in adoption) related back from the date of death of the
adoptive father (window’s husband). The reason was the woman could not adopt in her own without
the consent/authority of her husband or his sapindas. Therefore, the adoption is deemed to have taken
place on the date of her husband.

The Doctrine of relation back has been abolished by Section 12 of the Hindu Adoptions and Maintenance
Act,1956 and hence it is no more a law at present

Sawan Ram vs Kalawati AIR 1967 SC 1761

The Supreme Court held that the son adopted by the widow was deemed to be the son of her deceased
husband and the adoption would be effective from the date of the death of her husband (i.e. in 1948).
Therefore, the adopted son was entitled to inherit the property of the deceased husband.

Lacunae In Adoption Laws

Time Consuming Process

The process of adoption is very time taking and it needs to be addressed .In the researchers humble
opinion, to streamline the process, we need to ensure that there is awareness about adoption
procedures and there are sufficient adoption centers .The adoption process can take an extremely long
time, which can cause severe strain and stress to some families. Average waiting times can vary from a
few months to years in both national and international adoptions. Much comes into adoption, and the
state, as well as adoption agencies and experts, often set very strict criteria in distinct countries. Though
long wait times may be necessary for some adoptions, many families wish to find ways to reduce these
long waits in any way that they can

Very Strict Rules And Regulations

Domestic adoptions conform to strict rules and very strict scrutiny is given to the eligibility of adoptive
families. This makes the adoption process very troublesome and most the time the family fails to adopt
a child through such rules which leads to a discouragement among the prospective adopters and
adoptees

Limited Availability

According to the Child Adoption Resource Information and Guidance System (CARINGS), for every 10
adoptive parents in India, only one child is available. There are not enough kids accessible for adoption
because the institutionalized care ratio of abandoned children to kids is lopsided. This may result in
fewer kids being accessible for adoption, and adoptive parents may not be inclined to adopt a minority
group (any) child.

Gender Bias In Adoption

Although it was stated after the enactment of the Act that gender discrimination was eliminated, it still
occurs in the real sense. Unless her husband dies or suffers from any disability or renounces the world or
so, a married woman cannot adopt, not even with the approval of the husband. On the other side, with
the wife’s approval, a husband may adopt.

In this era of equality, it is time for the law to recognize the same and offer men and females equal
privileges with respect to adoption. There is no reason to veto the husband to deny his wife’s maternal
instincts satisfaction.

Judicial Perspective On Adoption

Darshana Gupta Vs. None and Ors. AIR 2015 Raj 105

Held, When the child to be adopted is orphaned, abandoned or surrendered child or a child in need of
care and protection as defined in Juvenile Justice Act, the bar imposed by Section 11 (i) and (ii) of Hindu
Adoption and Maintenance Act does not bar the Hindu having biological child from adopting the child of
same gender. In changed social scenario, Acts were liable to be construed harmoniously to ensure
rehabilitation and social reintegration of orphaned, abandoned and surrendered children - Therefore,
adoption of child girl to Appellant was held maintainable

Karam Singh & Ors Vs Jagsir Singh & Ors., 2015 (3) RCR (Civil) 45 (P&H)

Adoption � Hindu Adoptions and Maintenance Act, 1956, Section 16 �Presumption of validity � An
adoption deed comes into effect the moment it is signed or thumb marked by the natural parent and
the adopting parent � The only consequence of non-registration or a defective registration is that the
presumption of truth, raised under Section 16 of the Act shall not arise � Adoption deed shall have to
be proved like any other ordinary fact or document.

Conclusion

Adoption is a noble cause that brings joy to orphaned or neglected children. This gives us a chance to
show off the human side of humanity. It's a beneficial programme in which the infant is handled as
though he or she were a normal born child, with all of the affection, care, and attention that comes with
it. At the same time, it satisfies the desire of parents for children. Their mischief and laughter
reverberating off the walls of a building. Although a few tweaks may be made to make all adoption laws
a bit more consistent.

The present legislation cannot be considered ineffective because it produced results. However, it is past
time to address the gaps that have arisen as a result of changing times and increasing instances of
discrepancy by enacting a uniform law to ensure that everybody has equal status and privileges. Since
the personal laws of all religions have become stagnant and cannot change at the same pace as society,
there has been a need for a uniform civil code.

The nation's children are its most valuable resource. Their upbringing and isolation are the nation's
responsibilities. Children's services should be a big part of domestic human resource development
strategies to help kids grow up to be good people who are physically fit and mentally strong. With the
talents and inspiration that society needs, he is mentally alert and morally balanced. The goal is to
provide all children with equitable opportunities for development, as this will help to achieve larger
goals such as reducing inequality and increasing

title describes this case study in a summary, so it deals with an analytical research on social justice.