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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