Valid Adoption Under the Hindu Adoptions and Maintenance Act

An adoption by or to a Hindu is valid only if the four requisites in section 6 of the Hindu Adoptions and Maintenance Act, 1956 are satisfied: the adopter has the capacity and the right to adopt, the giver has the capacity to give, the child is capable of being adopted, and the remaining conditions of the Chapter, chiefly section 11, are met. Section 5 adds the sanction: an adoption made in contravention of the Chapter is void. Because the conditions are precise and the consequence is total, sections 6 to 11 are among the most frequently examined provisions of Hindu law.

What happens if an adoption does not follow the Act?

An adoption that breaches any condition of Chapter II is void, not merely irregular. Section 5(1) says no adoption after the commencement of the Act shall be made by or to a Hindu except in accordance with the Chapter, and that an adoption in contravention is void. Section 5(2) states the effect: a void adoption creates no rights in the adoptive family that the person could not otherwise have acquired, and does not destroy any rights in the family of birth.

The practical result is harsh. A child raised for twenty years as an adopted son, where the adoptive father lacked his wife's consent, has no claim as a son when the father dies intestate, because the adoption never took place in law. That is why practitioners check every condition before the ceremony, and why examiners love problem questions built on a single missing condition.

What are the four requisites in section 6?

Section 6 lists four requisites, and each is filled in by a later section. The table maps them.

A good answer in mains walks through the four in this order, applying each to the facts, before reaching a conclusion.

Who has the capacity to adopt?

Any Hindu, male or female, who is of sound mind and not a minor can adopt, but a married adopter needs the spouse's consent. Under section 7, a male Hindu with a wife living cannot adopt without her consent unless she has completely and finally renounced the world, has ceased to be a Hindu, or has been declared of unsound mind by a competent court. If he has more than one wife living, the Explanation requires the consent of all of them, subject to the same exceptions.

Section 8 was substituted with effect from 31 August 2010. Before that, a married woman could not adopt in her own right unless her marriage had been dissolved, her husband was dead, or he had renounced the world, ceased to be Hindu or been declared of unsound mind. The present section gives every female Hindu of sound mind who is not a minor the capacity to adopt a son or daughter, with her husband's consent if he is living, subject to the same three exceptions. An unmarried, divorced or widowed woman can therefore adopt on her own.

Note the words "capacity, and also the right" in section 6(i). Capacity is about the person (age and sound mind). The right is about the circumstances, which is why the spouse's consent and the conditions in section 11 also matter.

Who can give a child in adoption?

Only the father, the mother or the guardian of a child can give it in adoption. Section 9 was recast in 2010 to give the father and mother an equal right, but neither may exercise it without the other's consent unless the other has renounced the world, ceased to be a Hindu, or been declared of unsound mind. "Father" and "mother" here do not include adoptive parents, so an adopted child cannot be given in adoption again by the adoptive parents.

A guardian can give the child only in the situations listed in section 9(4): both parents are dead, have completely and finally renounced the world, have abandoned the child, have been declared of unsound mind, or the child's parentage is not known. Even then, the guardian needs the previous permission of the court, and may give the child to any person, including himself. Before permitting it, the court must be satisfied under section 9(5) that the adoption is for the child's welfare, must consider the child's wishes according to age and understanding, and must ensure that no payment or reward has been given or promised except what the court sanctions.

Which children can be adopted under section 10?

A child can be adopted only if four conditions in section 10 are met: the child is a Hindu, has not already been adopted, has not been married, and has not completed fifteen years of age. The last two give way to a custom or usage applicable to the parties that permits adoption of a married person or of a person aged fifteen or more. A custom must be pleaded and proved like any other fact; it is not presumed.

The first condition is often misread. Under the Explanation to section 2(1), a child is a Hindu for this purpose if both parents are Hindus, Buddhists, Jainas or Sikhs, or if one parent is and the child is brought up as a member of that parent's community. Clause (bb), added in 1962, covers a child abandoned by both parents, or of unknown parentage, who is brought up as a Hindu, Buddhist, Jaina or Sikh. Section 2(2) keeps members of Scheduled Tribes outside the Act unless the Central Government directs otherwise by notification, a point that appears in prelims more often than students expect.

What other conditions does section 11 impose?

Section 11 adds six conditions that apply to every adoption:

1. If a son is adopted, the adoptive father or mother must not have a Hindu son, son's son or son's son's son living at the time, whether by blood or by adoption.
2. If a daughter is adopted, the adoptive parent must not have a Hindu daughter or son's daughter living at the time.
3. If a male adopts a female, he must be at least twenty-one years older than her.
4. If a female adopts a male, she must be at least twenty-one years older than him.
5. The same child may not be adopted simultaneously by two or more persons.
6. The child must be actually given and taken in adoption by the parents or guardian, or under their authority, with the intent to transfer the child from the family of birth (or, for an abandoned child or one of unknown parentage, from the place or family where it was brought up) to the adoptive family.

The proviso says the performance of datta homam is not essential. What is essential is the physical act of giving and taking, a rule the Supreme Court had emphasised for the old law in Lakshman Singh Kothari v. Rup Kanwar (1961). A deed alone, without any giving and taking, does not make an adoption.

How do these rules work on actual facts?

Each condition can sink an adoption on its own, so apply them one by one. Four short hypothetical cases:

• Suresh is married and adopts a boy while his wife objects. She has not renounced the world, converted, or been declared of unsound mind. The adoption is void for want of consent under section 7.
• Meena, unmarried and 30, adopts a boy aged 10. The age gap is twenty years. Section 11(iv) requires twenty-one, so the adoption is void, even though she has capacity under section 8.
• Ravi and Asha have a daughter. They may adopt a son, because section 11(i) is about living sons. They may not adopt a second daughter, because section 11(ii) bars it.
• A guardian uncle gives a seven-year-old orphan in adoption to a cousin without the court's permission. Section 9(4) requires previous permission, so the adoption is void.

What are the legal effects of a valid adoption?

A valid adoption makes the child the child of the adoptive parents for all purposes from the date of adoption, and severs the ties with the birth family. Under section 12 there are three provisos: the child cannot marry anyone he or she could not have married in the birth family; property already vested in the child stays with the child, subject to its obligations; and the child cannot divest anyone of an estate already vested before the adoption.

Section 13 preserves the adoptive parents' power to dispose of their property by transfer or will, subject to any agreement. Section 15 makes a valid adoption irrevocable from both sides. Section 16 helps with proof: a registered document recording the adoption, signed by the giver and the taker, raises a presumption that the adoption complied with the Act until it is disproved. Uttar Pradesh goes further: under its state amendment, for an adoption made on or after 1 January 1977, courts in that State accept only a registered document recording the adoption, signed by the giver and the taker, as proof of the giving and taking.

How does HAMA adoption differ from adoption under the Juvenile Justice Act?

HAMA governs adoptions by and of Hindus where a parent or guardian gives the child; the Juvenile Justice (Care and Protection of Children) Act, 2015 governs orphan, abandoned and surrendered children and inter-country adoption. Section 56 of the Juvenile Justice Act says in sub-section (3) that nothing in that Act applies to adoptions under HAMA. Sub-section (2) also allows adoption of a child by a relative under the Juvenile Justice Act irrespective of religion.

Key points to remember

• An adoption contrary to Chapter II is void under section 5, not voidable.
• Section 6: capacity and right of the adopter, capacity of the giver, capacity of the child, and compliance with section 11.
• A married adopter of either sex needs the spouse's consent, subject to three exceptions.
• Father and mother have an equal right to give, each with the other's consent; a guardian needs the court's previous permission.
• The child must be Hindu, not already adopted, unmarried and under fifteen, unless custom permits otherwise.
• Twenty-one years' age gap for opposite-sex adoptions; actual giving and taking is essential; datta homam is not.
• A valid adoption cannot be cancelled, and a registered deed raises a presumption under section 16.

Where to go next

Read sections 5 to 16 in one sitting on the Law Maker bare act pages and then test yourself with the Hindu law mock tests. If you find yourself skimming provisos, the post on reading a bare act properly shows how to slow down where marks are lost. For a family planning an adoption, the right step is a family lawyer, who can be found through the LegalFirms practice area directory or asked a specific question through Ask a Lawyer.