Friday, 4 February 2022

Adoption under Hindu law

 


Adoption under Hindu law 

By swatee Shukla 

The ancient Hindu law of adoption was mainly based on the religious belief that a son was essential not so much for the material welfare of a man as for his spiritual salvation. However, with the passing of the Hindu adoptions and maintenance act, 1956, the law of adoption applicable to Hindus has undergone a radical change. Under the ancient Hindu law, the religious motive underlying adoption is completely superseded. Unlike the ancient Hindu law, the act now allows not only an adult person, married or unmarried, to adopt a child (a boy or girl), and also allows an adult woman (unmarried, widowed, divorced) a right to adopt a child to herself. The act deals with the capacity to adopt; the capacity to be adopted; the capacity to give in adoption and the effect of adoption. 

Capacity to adopt – any Hindu male who is minor and of sound mind and has taken consent from his wife(if he is married) can adopt. But regarding the third criteria i. e. consent from the wife, such consent is not required if the wife has completely renounced the world or has ceased to be a Hindu, or has been proven by a court of competent jurisdiction to be mentally unsound. Any Hindu female who is a major and is of sound mind can adopt a child. For a married woman to adopt a child, it has to be shown that her husband has completely renounced the world, or has ceased to be a Hindu, or has been proven by a court of competent jurisdiction to be mentally unsound. By the virtue of amendment in 2010, the old Hindu law has bid adieu when the Hindu female whose marriage was in subsistence had no capacity to adopt even with the consent of her husband. Now, married women having a living husband can also adopt a child along with the due consent of her husband.

The capacity of being adopted- the child who is a Hindu and has not had already been adopted and is below 15 years of age and is unmarried. If a male child is being adopted, the person who is adopting must not already have a son, son’s son, whether natural or adopted. If a female child is being adopted, the person who is adopting must not already have a daughter or son’s daughter. In case a person is adopting a child of a gender different from that of the person adopting, then the age difference must be greater than 21 years. Two people can not adopt the same child like two friends or two sisters can not adopt the same kid. An adopted child is deemed to be a natural child of his adopted parents for all purposes. All the relations with the natural parents and family come to an end. However, he is barred from marrying any person that he could not have married before adoption. He is also not divested of the property vested in him before adoption and he can not divest anybody of his vested property after adoption. As far as the family which adopted him is concerned, he is treated as a member of that family and his relationship is as if he were born naturally into their family. No payment as a consideration for the adoption may be taken. 


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