ADOPTION

LAWS DEALING WITH

ADOPTION
- Hindu Adoptions and Maintenance Act, 1956
- Juvenile Justice (Care and Protection) Act, 2015
HINDU ADOPTIONS AND
MAINTENANCE ACT, 1956
• Prospective application
•Applies to Hindus, Buddhists, Sikhs or Jains or any person who is
not a Muslim or Christian or Jewish
•Amended in 2010 to bring gender parity
•Deals with (ss. 5-17)
• Who can adopt
• Who can give in adoption
• Who can be adopted
• Restrictions on adoption
• Effects of adoption
6. Requisites of a valid adoption- No adoption shall be valid unless-
(i) the person adopting has the capacity, and also the right, to take in
adoption;
(ii) the person giving in adoption has the capacity to do so;
(iii) the person adopted is capable of being taken in adoption; and
(iv) the adoption is made in compliance with the other conditions mentioned in
this Chapter.
 CAPACITY TO GIVE IN
ADOPTION
- Sec 9

(1) No person except the father or mother or the guardian of a

child shall have the capacity to give the child in adoption.
(2) Subject to the provisions of sub-section (4), the father or the Prior to 2010, the father had the
mother, if alive, shall have equal the right to give in adoption.
exclusive right to give a child in
Provided that such right shall not be exercised by either of them
save with the consent of the other unless one of them has adoption after the consent of the wife
completely and finally renounced the world or has ceased to be a
Hindu or has been declared by a court of competent jurisdiction to
was taken. The mother could give in
be of unsound mind. (Post 2010 Amendment) adoption only after the father was
(4) Where both the father and mother are dead or have
completely and finally renounced the world or have abandoned
either dead, or of unsound mind, had
the child or have been declared by a court of competent ceased to be hindu or had renounced
jurisdiction to be of unsound mind or where the parentage of the
child is not known, the guardian of the child may give the child in the world.
adoption with the previous permission of the court to any person
including the guardian himself.
Section 9(5)

Explanation- For the purposes of this section-

(i) the expressions "father" and "mother" do not include an adoptive father and an
adoptive mother,

(Stepparents also have no authority to give their step-children for

adoption.
CAPACITY TO BE GIVEN IN
ADOPTION
Section 10

10. Persons who may be adopted.―No person shall be capable of being taken in
adoption unless the following conditions are fulfilled, namely:―
(i) he or she is a Hindu;
(ii) he or she has not already been adopted;
(iii) he or she has not been married, unless there is a custom or usage applicable
to the parties which permits persons who are married being taken in adoption;
(iv) he or she has not completed the age of fifteen years, unless there is a custom
or usage applicable to the parties which permits persons who have completed the
age of fifteen years being taken in adoption.
-expanded meaning of Hindu ((Section 2, explanation)

(a) any child, legitimate or illegitimate, both of whose parents are Hindus,
Buddhists, Jainas or Sikhs by religion;
(b) any child, legitimate for illegitimate, one of whose parents is a Hindu,
Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe,
community, group or family to which such parent belongs or belonged,
(bb) any child, legitimate or illegitimate, who has been abandoned both by his
father and mother or whose parentage is not known and who is either case is
brought up as a Hindu, Buddhist, Jaina or Sikh, and
(c) any person who is a convert or reconvert to the Hindu, Buddhist, Jaina or Sikh,
religion.
CAPACITY TO ADOPT
Section 7: Capacity of a male Hindu to take in adoption-

Any male Hindu who is of sound mind and is not a minor has the capacity to take a son
or a daughter in adoption.
Provided that, if he has a wife living, he shall not adopt except with the consent of his
wife unless the wife has completely and finally 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.
Explanation-If a person has more than one wife living at the time of adoption, the
consent of all the wives is necessary unless the consent of any one of them is
unnecessary for any of the reasons specified in the preceding proviso.
Prior to 2010 Amendment Post 2010 Amendment
Section 8: Capacity of a female Hindu to take
in adoption. (Before 2010 amendment) Section 8: Capacity of a female Hindu to take in
adoption-
Any female Hindu-
(a) who is of sound mind, Any female Hindu who is of sound mind and is not
a minor has the capacity to take a son or a
(b) who is not a minor, and daughter in adoption.
(c) who is not married, or if married, whose Provided that, if she has a husband living, she shall
marriage has been dissolved or whose not adopt a son or daughter except with the
husband is dead or has completely and finally consent of her husband unless the husband has
completely and finally renounced the world or has
renounced the world or has ceased to be a ceased to be a Hindu or has been declared by a
Hindu or has been declared by a court of court of competent jurisdiction to be of unsound
competent jurisdiction to be of unsound mind, mind.
has the capacity to take a son or daughter in
adoption.
RESTRICTIONS ON
ADOPTIONS
Section 11. Other conditions for a valid adoption- In every adoption, the following
conditions must be complied with

(i) if any adoption is of a son, the adoptive father or mother by whom the adoption is made must not
have a Hindu son, son's son or son's son's son (whether by legitimate blood relationship or by adoption)
living at the time of adoption;
(ii) 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 (whether by legitimate blood relationship or by adoption)
living at the time of adoption;
(iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least
twenty-one years older than the person to be adopted;
(iv) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at
least twenty-one years older than the person to be adopted;
(v) the same child may not be adopted simultaneously by two or more persons;

(Provided that the performance of datta homan, shall not be essential to the validity of an adoption.
EFFECT OF ADOPTION
Section 12. Effect of adoptions- An adopted child shall be deemed to be the child of his or
her adoptive father or mother for all purposes with effect from the date of the adoption and
from such date all the ties of the child in the family of his or her birth shall be deemed to be
severed and replaced by those created by the adoption in the adoptive family.
Provided that-
(a) the child cannot marry any person whom he or she could not have married if he or she
had continued in the family of his or her birth;
(b) any property which vested in the adopted child before the adoption shall continue to vest
in such person subject to the obligations, if any, attaching to the ownership of such property,
including the obligation to maintain relatives in the family of his or her birth;
(c) the adopted child shall not divest any person of any estate which vested in him or her
before the adoption.
CONSENT OF CO-WIDOWS?
Facts
• A.T. Nanjappa Rao died in the year 1968 leaving behind him two widows,
• The senior widow adopted a son without consulting the junior widow.
• The adoption was challenged as being invalid.
• It was contended that the stipulation in section 7 (requiring consent of wives)
should be read into section 8 as well.
Issue
Whether a widow needs to obtain consent from a co-widow before adopting a child
under HAMA?
Held:

• The court held that the legislature had deliberately omitted the requirement of
consent from the co-widow.
• This is an indication of the legislature's intention to give independent authority to
woman to adopt.
• This is in keeping with the changes social set-up and recognising equal rights and
status for women.
• Therefore, where a widow adopts a child, she need not take consent of a co-widow
because she is adopting the child in her own capacity.
• Moreover, section 12(C) makes it clear that not be divested of any property that
vested with them prior to adoption. Therefore, not taking consent of the junior
widow here would not operate to her detriment.
JUVENILE JUSTICE (CARE &
PROTECTION) ACT, 2015
•The JJ Act deals with two specific categories of children-

•i) children alleged and found to be in conflict with law and

•ii) children in need of care and protection by
IMPORTANT SECTIONS
• “abandoned child” means a child deserted by his biological or adoptive parents or
guardians, who has been declared as abandoned by the Committee after due inquiry;

• “best interest of child” means the basis for any decision taken regarding the child, to ensure
fulfilment of his basic rights and needs, identity, social well-being and physical, emotional
and intellectual development;

• “Committee” means Child Welfare Committee constituted under section 27;

• - “orphan” means a child—
• (i) who is without biological or adoptive parents or legal guardian; or
• ii) whose legal guardian is not willing to take, or capable of taking care of the child;

• “surrendered child” means a child, who is relinquished by the parent or guardian to the
Committee, on account of physical, emotional and social factors beyond their control, and
declared as such by the Committee;
• “relative”, in relation to a child for the purpose of adoption under this Act, means a paternal
uncle or aunt, or a maternal uncle or aunt, or paternal grandparent or maternal grandparent
WHO CAN BE ADOPTED?
A child can be adopted if s/he is:

a) An orphan, abandoned or surrendered (OAS) child who has been

declared legally free for adoption by the Child Welfare Committee (CWC)-

b) A child of a relative (a relative means the child's paternal uncle or aunt,

a maternal uncle or aunt or paternal and maternal grandparents)

c) Step- child

(Section 38 and 56 of the JJ (C&PC) Act, 2015 and Regulation 4 of Adoption

Regulations)
WHO CAN ADOPT?
- Section 56, 57 r/w CARA Guidelines

General Requirements:
Prospective adoptive parents (PAP):- who are physically,
mentally and emotionally stable, financially capable and who
do not have any life threatening medical conditions are
eligible to adopt.

The minimum age difference between the child and PAP/s

shall not be less than twenty-five years
CARA GUIDELINES
- Eligibility criteria for prospective adoptive parents
- Relative adoption
- Adoption by Step-parent
- Adoption for OCI/Foreigner living in India
- NRI/OCI/Foreigner Living abroad
VINAY PATHAK AND HIS WIFE
V. UNKNOWN (BOM HC)
2009
• Issue- Whether a Hindu couple can adopt a daughter under JJ Act when they already have a biological
daughter living?

Held
• The Hindu Adoptions and Maintenance Act, 1956 deals with conditions requisite for adoption by Hindus. The
Juvenile Justice Act of 2000 is a special enactment dealing with children in conflict with law and children in need
of care and protection.
• While enacting the Juvenile Justice Act 2000 the legislature has taken care to ensure that its provisions are
secular in character and that the benefit of adoption is not restricted to any religious or social group.
• The focus of the legislation is on the condition of the child taken in adoption. If the child is orphaned, abandoned
or surrendered, that condition is what triggers the beneficial provisions for adoption.
• The religious identity of the child or of the parents who adopt is not a precondition to the applicability of the
law.
• Where, however, the child is not of a description falling under the purview of the Juvenile Justice Act, 2000, a
Hindu desirous of adopting a child continues to be under the embargo imposed by Clauses (i) and (ii) of Section
11 of the Act of 1956.
• Alternatively, even if there were to be a conflict between the provisions of the Hindu Adoptions and
Maintenance Act, 1956 and the Juvenile Justice Act of 2000, it is the latter Act which would prevail.
SHABNAM HASHMI V. UNION
OF INDIA (SC, 2014)
Issue:

A) Muslim Personal law does not recognize adoption. Can a Muslim person adopt
under the JJ Act?
B) Whether the right to adopt and be adopted a fundamental right under Part III of
Constitution of India?
C) Need for voluntary guidelines for adoption of children by people irrespective of
their religion caste, creed etc?
Held:
A) JJ Act, 2015 is an enabling legislation and an optional legislation.
“an optional legislation that does not contain an unavoidable imperative cannot be
stultified by principles of personal law which, however, would always continue to
govern any person who chooses to so submit himself until such time that the vision
of a uniform Civil Code is achieved :

B) Right to adopt need not be declared as a fundamental right. It is

the prerogative of the legislature.
C) JJ act, rules and CARA guidelines provide enough guidelines.

Therefore, Muslims can adopt under the JJ Act