「 ✦ Content ✦ 」

Having children is a gift of God, and adoption enables couples who cannot have children, or singles who for any reason do not wish to get married but embrace parenthood. Adoption process under CARA is secular and anyone regardless of the religion can opt for adoption. However, the Hindu Adoption and Maintenance Act, 1956 has some restrictions in this regard. The blog here covers the various legal aspects of adoption under HAMA. 

What are the conditions of a valid adoption under Hindu Adoption and Maintenance Act, 1956?

Section 6 of HAMA lays the requisites of a valid adoption. It provides that adoption can be valid if the person taking in adoption is capable of adopting, the person giving in adoption is so capable, the person being adopted is capable of being taken in adoption, and the adoption is made in compliance with the other requirements. Given below is the explanation of each of the capability aspects of the parties involved. 

Who can adopt under HAMA?

There are specific legal requirements for who can undergo adoption under Hindu Adoption and Maintenance Act, as explained below:

Adoption by Hindu Male 

As per Section 7 of the HAMA, any male Hindu who has attained the age of majority and is of sound mind is capable of adopting a son or daughter. In the case of a married man, he cannot adopt a child unless his wife consents for the same, unless she has renounced the world/ceased to be a Hindu/declared unsound mind by a competent court. 

Adoption by Hindu Female

Any female Hindu who has attained the age of majority and is of sound mind is capable of adopting a son or a daughter. It may be noted that a married woman is not capable of adopting a child as per the Act. Thus, if married once, she should have been divorced or be a widow or whose husband has renounced the world/ceased to be a Hindu/ declared unsound mind by a competent court.

Who can give a child in adoption?

Section 9 of HAMA provides for the persons who are capable of giving a child in adoption, and mainly provides the parents with an exclusive right to give in adoption. The father can exercise his right to give in adoption with the consent of the child’s mother, unless she has renounced the world/ceased to be a Hindu/ declared unsound mind by a competent court. 

In case the father is dead/has renounced the world/ceased to be a Hindu/ declared unsound mind by a competent court, the mother may give in adoption.

In case the father and mother both are dead/renounced the world/ceased to be a Hindu/ declared unsound mind by a competent court or when the parentage of the child is not known, the child’s guardian may give him/her in adoption under Hindu Law.

It may be noted that adoptive parents are not eligible to give a child up for adoption.

Who can be adopted under HAMA?

For adoption under Hindu Adoption and Maintenance Act, Section 10 provides that a person should be a Hindu, who has not already been adopted, has not been married (unless custom allows) and is aged below 15 years (unless custom allows otherwise). 

Additional Conditions for Valid Adoption under HAMA

Section 10 of Hindu Adoption and Maintenance Act lays certain additional conditions for adoption under Hindu Adoption and Maintenance Act: 

• For adopting a son under HAMA, the prospective father or mother cannot have a Hindu son, son's son or son's son's son alive at the time of adoption.

• For adopting a daughter under HAMA, the prospective parents cannot have a Hindu daughter or son's daughter.

• The same child cannot be adopted simultaneously by two or more people.

• Child to be adopted should be actually taken and given with intent to transfer from his/her birth family to the family of adoption. 

Adoption Rules under HAMA for Single Parents

Adoption under Hindu Adoption and Maintenance Act is allowed regardless of marital status of the person willing to adopt. However, there are certain rules for single parents for a valid adoption, as shown through the pointers below:

• For a male adopting a Hindu female, there has to be an age gap of at least 21 years between the two. In other words, the adoptive father should be 21 years older or more, than the girl child to be adopted.

• For a female adopting a Hindu male, there has to be an age gap of at least 21 years between the two. In other words, the adoptive mother should be 21 years older or more, than the baby boy to be adopted.

• If a person adopts and subsequently gets married, such spouse is deemed to be a step-mother or step-father of the adopted child. 

Effects of Adoption

Adoption under Hindu Adoption and Maintenance Act gives permanence to the adoption process. In other words, the child so given in adoption becomes the child of the parents who took in adoption, and the ties with the birth family are deemed to be severed and replaced by those created by the adoption. It can neither be reversed nor be renounced.

However, the child so adopted cannot marry someone whom he/she could not marry if continued in the birth family. The property so vested in the child before adoption continues, along with the obligation to maintain relatives. Also, the adopted child cannot divest any person of any estate which vested in him/her before the adoption. Written by: Advocate Anish Palkar