Village & Post: Nighasan Kheri, 262903 City: Lakhimpur Kheri, 262701

ADOPTION: A LIFELONG JOURNEY

Adoption - Rashmi Chauhan

INTRODUCTION

According to UNICEF[1] reports, there are roughly 153 million orphans worldwide out of which about 31 million are from India. Most of these kids are abandoned by their parents. Who should take the responsibility for these kids? Well, one of the solutions is adoption, some people don’t have kids because of various problems and these orphans are like a gift from god to them. Adoption is a lawful practice of taking someone else’s child and bringing him as your own. There are no uniform laws for adoption only Hindu which includes Sikhs, Buddhists, and Jain has the right of adoption.

As per Hindu Vedas and Shastras, The adopted son is believed to be a reflection of the natural son and is treated similarly with the same rights and Obligations. The Hindu adoption and maintenance act came into existence in 1956.

This act has important features like:-

  1. There are no two types of Adoption anymore. It was made secular
  2. It gave the right to both man and woman to adopt on their right
  • Discrimination on the grounds of race has ended, now both boys and girls can be taken into adoption.
  1. Now children in close relations, abandoned ones, out of cast children, can also be adopted
  2. Widows, widowers, single parents, and bachelors can also adopt.
  3. A male person who’s adopting a girl child should have an age gap of 21 years between them.[2]

 People have a different motive for adopting, just as one may want someone to look after their property after their death, one may wanting love and care in absence of the spouse. So motive is irrelevant[3] .the main motive of this law is to console the orphan child and the childless parent[4].

ESSENTIALS OF A VALID ADOPTION

Section 6 of this act lays down the Essentials of valid adoption.

  1. The person should have the capacity to adopt but also the right to take in adoption.
  2. The person giving the adoption should have the capacity to give.
  • The person who is being taken has the capacity to be taken.

For an adoption to be valid it is important to prove that all the essentials have been fulfilled.

CAPACITY OF A MALE TO ADOPT

According to section 7 of HAMA 1956, any Hindu male can adopt if he fulfills the conditions below:

  1. He has attained the majority [5]and of a sound mind.
  2. If he is married then the wife’s consent is necessary.[6]

In the case of Bhooloram vs. Ramlal AIR1989, it was held that if the consent of the wife living with the husband had been obtained but the consent of the wife living outside the husband had not been obtained, the approval would be invalid.

  • The consent [7] of a wife is not needed if the wife has become a Sanyasin[8], has changed her faith for religion, and has ceased to be a Hindu, or has been proved to be mentally unsound [9]by a judge.

ADOPTION BY FEMALE

According to section 8 of The Hindu Adoption and Maintenance Act, any Hindu female can adopt if she complies with the following:

  1. She must have accomplished the majority and must be psychologically fit.
  2. She can be unmarried, a widow, or a divorcee female.

Earlier under Hindu law married female had no right to adopt a child even with the consent of her husband[10].

In the case of Vijayalakshamma vs. B T Shankar, AIR2001, it was held that the consent of co-widow is not necessary because the widow could take her right to adopt.

  • Only if the husband has renounced the world entirely, or is of an unsound mind, or has ceased to be a Hindu, is when a married woman is permitted to adopt.

WHO ARE CAPABLE OF GIVING ADOPTION?

 Section 9 tells us who can give in adoption.

  1. Only the natural father has the capacity to give a legal[11]child in adoption. However, the father must obtain consent from his wife [12] until and unless she has been shown as mentally ill by a competent judge or has renounced the world.
  2. Natural Mother has the capacity to give the child in adoption, If the father is psychologically unstable, or has renounced the world, or has ceased to be a Hindu, or is no more (dead).
  • If both the natural mother and father are dead, or have renounced the world, or have abandoned the child, or have an unsound mind, then a guardian, testamentary[13] appointed by the court can give in adoption. The guardian may give the adoption with the permission of the court. Such adoption is for the child’s welfare and also that the wishes of the child will be considered.[14]

WHO CAN BE TAKEN IN ADOPTION?

  1. He should be a Hindu[15]
  2. He must not have already been adopted.
  • He must be unmarried unless there happens to be a custom that allows them to be taken in adoption, even if they are married.
  1. He must be less than 15 yrs of age unless there happens to be a custom that approves them for adoption.

In the case of Sharinee Vinay Pathak 2010, it was held that the child can be adopted by a Hindu couple by juvenile justice (care and protection act of 2015) if the child complete or falls under the specific class for which the juvenile justice act was made.

CONCLUSION

In the end, only the Hindu adoption and maintenance act 1956 recognizes adoption that to only for Hindu, there are no laws regarding adoptions in any other religion. The government tried to eradicate discrimination based on gender from this act but we cannot say they were fully successful; there are still lots of loopholes in this act.

The motive of adoption is basically to give a good future to parentless children, these children are dependent on people who are taking care of them, and so protecting their rights is the most important duty of a person who is adopting the child. Adoption is a generous deed and a blessing for both the child and the childless parent. Some so many children don’t have parents, homes by adopting them we can provide proper education, happiness, care, and protection which they deserve.

If we think of adoption practically it is a good solution for controlling the population, rather than conceiving more babies one should adopt one. We should not discriminate between our children and adopted child, both are god gifted. The only thing we need to make sure is that child is in the right hands because in the end what matters is the child’s welfare.

Author(s) Name: Rashmi Chauhan (Amity University, Jaipur)

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[1] United Nation Children’s Fund survey of Orphans in worldwide 2020

[2] Clauses (3)&(4) of S. 11.

[3] Shripad v.Dattaram,1974 SC 878, Naidu v. Naidu, 1970 SC 1673                                                                                                                                                                                                   

[4] Modern Hindu law  by Dr.Paras Diwan page number 233-236

[5] A person attains the age of 18 years.

[6] Section 5(1)

[7]  Agreement to do something.

[8] When a female renounces material possession and devotes herself to spirituality.

[9] Modern Hindu law  by Dr.Paras Diwan page number 236-238

[10] Malati Roy Chowdhury v.Sudhindra Nath Majumdar,2007 Cal.4.

[11] Legitimate children are those whose parents are legally married.

[12] Section 9

[13] Guardian appointed by will.

[14] Modern Hindu law  by Dr.Paras Diwan page number 240-242

[15] Kumar Sursen v. the State of Bihar,2008 Pat. 24