Need for Child Adoption :
Need for child adoption may arise for various reasons. The husband or wife, who were normal and fertile at the time of marriage may subsequently become infertile due to administration of wrong drugs, accident, physical illness or unsoundness of mind etc.
It is also possible that the husband having undergone vasectomy or wife having undergone the (operation), the natural born child may be lost or it may die in accident or due to illness. A child may be adopted by a person to seek personal comfort or relief after having suffered such a loss or bereavement in the family.
The Hindu scriptures regard adoption as a sacrament. If a Hindu could not beget a son from his marriage, he needs to adopt one for performance of his funeral rites and to preserve the continuance of his lineage. However, sometimes the reasons could be non-religious - to despise a prospective heir who could take the property, in the absence of a son. Also in case of a matrimonial disputes, adoption can play a significant role. It is therefore advised that the foregoing material be read and understood completely.
There are several scenarios possible with respect to the status of the adopting male at the time of his adopting a child :
1. Adopting male is an Indian Hindu widower or unmarried
2. Adopting male is an Indian Hindu married to an Indian Hindu female
3. Adopting male is an Indian Hindu married to an Indian non-Hindu female
4. Adopting male is a married Indian Hindu but his wife has renounced the world
5. Adopting male is an Indian Hindu divorcee
6. Adopting male is a Non-Indian married or unmarried Hindu
The statute of law governing adoption by an Indian Hindu male is Hindu Adoptions and Maintenance Act, 1956 (HAMA). Therefore an adoption in the first five cases above shall be covered under the HAMA.
WHICH HINDU MALE CAN ADOPT – A Hindu male can adopt a child under the provisions of HAMA if –
1. He has a domicile in India
2. He is minimum 18 years old
3. He is of a sound mind
4. He has not renounced the world and joined any religious order
A child may be adopted under HAMA if –
1. the child is a Hindu (as per the definition in chapter 1)
2. the child has not been adopted already
3. the child is unmarried unless the custom or usage of the child being adopted and the adopting male Hindu permits this
4. the child must be below 15 years unless the custom or usage of the child being adopted and the adopting male Hindu permits this
Rules with respect to the status of the adopting father –
1. When the Indian Hindu male is a widower or unmarried, he does not need anybody’s consent to adopt a child.
2. When the Indian Hindu male is married to an Indian Hindu female, he requires the consent of his wife unless
a) the wife has ceased to be a Hindu
b) the wife has completely and finally renounced the world
c) the wife has been declared to be of unsound mind by a court which has a competent jurisdiction
3. When the Indian Hindu male is married to an Indian non-Hindu female, the wife’s consent is not required under HAMA.
4. When the Indian Hindu male was married but his wife has renounced the world, such wife’s consent is not required because she loses her status of being his wife under Hindu Marriage Act.
5. When the Indian Hindu male is a divorcee, he does not need anybody’s consent if a decree of divorce has already been granted. However, wife’s consent is needed if a petition for divorce is still pending before the divorce court.
6. A Non-Indian Hindu male can not adopt under the provisions of HAMA.
Other conditions for a valid adoption –
1. If a Hindu male adopts a female child, there must be at least 21 years age difference between the two.
2. The adoption must be real and not symbolic. The child must be actually given and taken in adoption by the respective parties. However, no specific shastric or religious ceremony is necessary for the purpose.
3. If a Hindu male wishes to adopt a male child, he must not already have any Hindu son, son’s son or son’s son’s son (whether by legitimate blood relationship or by adoption). Likewise if he wishes to adopt a female child, he must not have any Hindu daughter, or son’s daughter (whether by legitimate blood relationship or by adoption). This has some important implications :
a) If a Hindu male has a natural born son from his Hindu wife but the wife has divorced him and she has also been granted the custody of her son by a court of law, the Hindu male can not adopt a son. The same rule applies to adoption of a daughter.
b) If a Hindu male does not have the capacity to beget a child, and he adopts a son with the consent of his wife, and subsequently his wife divorces him and is also granted the custody of the adopted son, the Hindu male can not adopt another son.
In both the above instances, sacramental reasons of having a son are being put on the back seat by the Modern Hindu Family Laws and judicial activism.
c) If a Hindu male has a son from illegitimate relationship, but no legitimate son from his wife, he may adopt his own illegitimate son. If his wife is a non-Hindu, he does not even need her consent for adoption.
d) If he has a son from a non-Hindu wife who is raising this son as a non-Hindu, the Hindu male can adopt a Hindu child as his son without the consent of his non-Hindu wife. The same rule applies to the adoption of a daughter.
Adoption by a Hindu woman –
A Hindu woman can also adopt a child if she is domiciled in India and is either unmarried or a widow or a divorcee. If she is married, only her husband has the capacity to adopt a child under HAMA, she has no capacity to do so. However, following exceptions apply –
a) If husband has been declared to be of unsound mind by a court of competent jurisdiction
b) If husband has completely and finally renounced the world
c) If husband has ceased to be a Hindu
She can adopt either an unmarried boy or a girl under 15 years of age. However, a married boy or girl and over the age of 15 years may be adopted provided custom or usage permit so, as in case of the adopting male. If a boy is adopted by the woman, adopting mother must be at least 21 years older than him.
Legal effects of adoption : Adoption is like removing a tree with its roots from one place and planting it at another place. After adoption, the adopted child loses all its ties with the natural family and is treated like a born child in the adoptive family.
The adopted child is conferred with all the rights and privileges of a natural born child in the adopting family. On the other hand, such a child loses all his rights and privileges of a natural born child in the natural family.
However, all the restraints imposed upon him/her with respect to degree of relationship under Hindu Marriage Act apply in both the new as well as the previous families. Thus he/she can not marry his/her siblings by birth as well as by adoption.
Once a valid adoption has been made, it can not be revoked by the natural parent(s), the adopting parent(s) or the adopted child. Adopting parent(s) can not give the child in adoption again.
It must be understood and remembered that any agreement not to adopt is invalid irrespective of the parties involved. Thus if such an agreement is made between husband and wife, whether before getting married or after marriage, is void, no matter for whatever reasons the agreement was made.
Further, it must also be remembered that if adoption is made in consideration of some pecuniary rewards or property, the adoption is valid but the agreement with respect to the pecuniary reward or property is void. Thus one may be hoodwinked and get stuck with the adopted child without getting the promised property or rewards.
Effects of marriage on prior adoption – If a bachelor or a widower Hindu adopts a child and subsequently marries, his wife shall be deemed to be the step-mother of the child (Section 14, clause 3 of HAMA). The Act is silent on effects of remarriage by a divorced male after adoption of a child. But the logical legal position would be that the new wife of the adoptive father will be deemed to be step-mother of the adopted child.
Similar would be the legal position if an unmarried, widowed or divorced Hindu woman adopts a child and then marries.
Under HAMA, the doctorine of relating back does not apply as it used to under the classical Hindu law. Under the HAMA, adopted child is deemed to have been born to the adopting family on the day of adoption for all legal consequences of adoption.
The implications of this law can be understood from the situation wherein the boy belonging to a Joint Hindu Family dies and his widow adopts a son subsequently. Under classical Hindu law, the adoption of a son would have related back to the widow’s deceased husband, with the result that other relative would have been divested of his right to succeed to the property of the deceased. According to HAMA, if the death of the Hindu male resulted in inheritance of his property by a relative by virtue of being in the same Joint Hindu Family, a subsequent adoption by his widow will not divest that person’s right of inheritance.
Article Contributed by :
www.soulmateindia.com/
