A male or female can adopt a child provided
he or she is a major and is of sound mind. A spinster or a divorced woman can
adopt. A widow can also adopt. A married woman can adopt when her husband has
renounced the world or has ceased to be a Hindu, or has been declared to be of
unsound mind by a court of competent jurisdiction. Formerly a widow could adopt
to her deceased husband only. Now after the commencement of the Hindu adoptions
and maintenance Act, 1956 she can adopt to herself.
The wife of
the adopter becomes the adoptive mother. When there are several wives, the
senior most in marriage become step-mothers. When a bachelor or widower adopts,
any woman whom he marries subsequently shall deemed to be the step-mother. When
a widow or an unmarried woman adopts, any man whom she marries subsequently
shall be deemed to be the step-father.
REQUISITES OF A VALID ADOPTION
(1) Capacity to
adopt :--
the person adopting should have the
capacity to take a child in adoption. Such capacity exists when he is of sound
mind and is not minor. A bachelor can adopt. If the adopter has a wife, he
shall take her consent. If he has more than one wife , the consent of all wives
is necessary. Before the commencement of the Hindu adoptions and maintenance
Act, 1956, the wife had no such power.
(2) The person
giving in adoption should have the capacity to do so. While the father is alive
generally he alone can give in adoption but he can do so only with the consent
of the mother of the child unless she has renounced the world or cased to be Hindu
or has been declared to be of unsound mind by a court of competent
jurisdiction. The mother can give the child in adoption if the father of the
child is dead or has renounced the world or has ceased to be a hindu or has
been declared to be of unsound mind by a court of competent jurisdiction.
An adoptive father or adoptive
mother cannot give the adoptive child in adoption someone else.
(3) The child
adopted should be capable of being taken in adoption. The child to be adopted
should be under fifteen years of age. A boy or a girl may be adopted. Formerly
only a male child could be adopted. Now it is possible to adopt a daughter. The
child should be a Hindu, and should not have been previously adopted by someone
else. A married person cannot be taken in adoption unless permitted by custom.
In Bombay school of Hindu law custom the adoption of a married male.
There are other conditions are as follows..
(4) Other
conditions :--
a son cannot be adopted if the
adopter has a Hindu son, son’s son living at the time of adoption. A daughter
cannot be adopted if the adopter has a daughter or son’s daughter living at the
time of adoption. A male cannot adopt a female child unless he is at last 21
years older than the adoptee. A woman cannot adopt a male child unless she is
21 years older than the adoptee. The same child cannot be adopted
simultaneously by more than one person. No person should give or receive any
payment or reward in consideration of the adoption. The contravention of this
does not invalidate the adoption, but the person contravening is punishable
with fine or six months imprisonment or with both.
(5) Ceremony of adoption :--
all that is required for completing the
adoption is actual giving and taking of the child. Formerly Datta Homam was
necessary except in the case of sudras. Now it is dispensed with in all cases.
If registered document purporting to record an adoption is signed by the person
giving and the person taking in adoption, it will be presumed that the adoption
has been made in compliance with the provisions of the Act.
(6) Effect of
adoption :--
adoption
results in the transfer of the child from the family its birth to the family of
its adoption. The ties in the family of birth are severed and replaced in the
family of adoption. However, 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. Any right vested in the adopted child before adoptions continues in such
person even after adoption. The adopted child does not divest any person of any
estate which has already been vested in such person before the adoption. This
is a radical departure from the shastric Hindu law. Formerly the adopted son
could divest in many cases when adoption was made by a widow, by a legal
fiction the adoption related back to the date
of the death of the husband of the adoptive mother. Now the adoption
operates from the date on which the child was taken in adoption.
The adoption does not deprive the
adopter of the power to dispose of his or her property by transfer inter vivos
(between living persons, or by will)
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