Hindu Adoption & Maintenance Act

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 Previous year question

  • Define Adoption and describe the main requisites and conditions of a valid adoption

Read the Act here and keep it open to refer to it as you go through this post.

Acts
  • Hindu Adoption and Maintenance Act
  • Guardians and Wards Act, 1890
  • Personal Laws (Amendment) Bill, 2010
Adoption may be defined as the process of creating a legal relationship between a child and a non-minor adult who is not the biological parent of the child, giving the adult custody of raising the child.

About the act

Chapter I
Sec 2  Applicability of the act (same as Hindu Marriage Act 1955)
  • to Hindus
  • to Buddhists, Jains, Sikhs
  • anyone who is not Muslim, Parsi, Jew, Christian
Explanation:
any child (legitimate or illegitimate) whose
a) both parents are Hindu, Sikhs, Jains, Buddhists
b) one parent is Hindu / Sikh / Jain / Buddhist and is raised as part of a tribe/family to which such parent belongs
c)convert / reconvert to Hindi, Buddhist, Jain, Sikh

Exclusion: The act would not apply to Scheduled Tribe within clause 25 of Art 366 of the Constitution

Sec 3 Definitions
1. custom” and “usage” signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family (same as in HMA 1955)

2. maintenance includes
(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment; (ii) in the case of an unmarried daughter, also the reasonable expenses of and incident to her marriage

Chapter II Adoption

Sec 5 (2) a void adoption will neither create rights for the person in an adoptive family which could have only been acquired through adoption nor destroy the rights of any person in the family of his/her birth

Meaning/interpretation: if an adoption is void (that is in contravention of this act and thus deemed void), it will have no effect on creating any rights in the adoptive family and no effect on eliminating any rights of the birth family of the individual who was being adopted

Sec 6 Requisite of a valid adoption

(i) the person adopting has the capacity, and also the right, to take in adoption; 
(ii) the person giving in adoption can do so 
(iii) the person adopted is capable of being taken into adoption
(iv) the adoption is made in compliance with the other conditions mentioned in this Chapter

2 conditions for the person adopting, 1 condition on the person being adopted and 1 general compliance condition with the act

Sec 7 Capacity of a male Hindu to adopt -
Any male Hindu of sound mind and over 18 years
If married, needs consent of wife [Explanation: consent of all wives necessary]

Sec 8 Capacity of a female Hindu to adopt -
Any female Hindu of sound mind and over 18 years
If married, needs to the consent of the husband 

Sec 9 Person capable of giving in adoption -
Only the mother or the father, or the guardian
father or mother, if alive shall have equal right to give in adoption
The right will be exercised with consent from each other

Guardians can give the child in adoption to another / themself with previous permission from the court
A court must be satisfied that the adoption is for the welfare of the child, due consideration given to the wishes of the child and the applicant for adoption hasn't received any payment or reward for the same

Explanation: 
Exclusions: Adoptive father, adoptive mother
Inclusions: Guardian includes
- appointed by the will of the father or mother
- guardian declared by the court

Sec 10 Person who may be adopted (conditions)
  1. is Hindu
  2. has not been adopted
  3. unmarried, unless a custom applicable to the parties permits persons who are married to be taken into adoption
  4. has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permit persons who have completed the age of fifteen years to be taken in adoption

Sec 11 Other conditions
  1.  if adopting of a son, the adoptive father or mother adopting must not have a Hindu son, son’s son or son’s son’s son (whether by legitimate blood relationship or by adoption) living at the time of adoption; 
  2. similar condition above in the adoption of a daughter, must not have a Hindu daughter or son’s daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;
  3. if male child is adopted and adoption by a female, the adoptive mother is at least 21 years older than the male child
  4. if female child adoption and adoption by a male, the adoptive father is at least 21 years older than the female child
  5. the same child may not be adopted simultaneously by two or more persons;
  6. the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with the intent to transfer the child from the family of its birth
Sec 12 Effects of Adoption
  • deemed to be child of the adoptive family and all ties with the family of birth severed and replaced by those with the adoptive family
Provided
  • the child won't marry any person whom he couldn't have married had he has been in his family of birth
  • property vested in the child before adoption will continue subject to obligations, that attach to the property, including the obligation to maintain relatives in the birth family
  • adopted child shall not divest any person of any estate which vested in him/her before adoption

Sec 13 Right of adoptive parents to dispose of properties by transfer inter vivos or by will stay intact

Sec 15 valid adoption cant be cancelled by adoptive parents and neither be renounced by the adopted child

Sec 16 Document presented before the court with signatures from the person giving and person adopting purported to record an adoption shall be presumed to be made in compliance with the law unless disproved

Sec 17 (1) payments or rewards for adoption prohibited
(2) contravention punishable with 6 months or a fine
(3) no prosecution under the act unless sanctioned by the state government

Chapter III maintenance
Sec 18 Maintenance of wife
(1) Hindu wife entitled to maintenance by her husband for a lifetime
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance
  1. - if he is guilty of desertion
  2. - treated her with cruelty
  3. - has any other wife living
  4. - keeps a concubine or habitually resides with a concubine elsewhere
  5. - husband ceases to be Hindu
  6. - any other just cause
(3) A Hindu wife is not entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion


Sec 19 Maintenance of widowed daughter-in-law
entitled to be maintained after the death of her husband by her father-in-law provided
unable to maintain herself out of her own earnings or is unable to obtain maintenance from
  1. from the estate of her husband or her father or mother, or 
  2. from her son or daughter, if any, or his or her estate.
(2) shall not be enforceable if the father-in-law has not the means to do so from any coparcenary property in his possession out of which the daughter-in-law- law has not obtained any share any such obligation shall cease on the remarriage of the daughter-in-law

Sec 20. Maintenance of children and aged parents
Hindu is bound, during his or their lifetime, to maintain his or their legitimate or illegitimate children and his or their aged or infirm parents
(2) claim maintenance so long as the child is minor
(

Sec 23. Amount of maintenance