Adoption Chapter Notes | Legal Studies for Class 11 - Humanities/Arts PDF Download

Adoption

A. What is Adoption?

Adoption is the act of establishing a person as a parent to one who is not in fact or in law their child.

• It is a means by which a legal relationship is established between the parent and child who are not biologically related.
• Adoption is also defined as a process by which people take a child not born to them and raise them as a family member.
• Earlier, the primary objective of adoption was to secure the performance of funeral rites and to maintain one's lineage.

B. Statutes Governing Adoption

Statute in focus: The Hindu Adoption and Maintenance Act, 1956.

• The Hindu Adoption and Maintenance Act, 1956, is the sole legislation governing adoption in India and is applicable only to Hindus.
• This law outlines the legal process of adopting children by Hindu adults and the obligations to provide maintenance to family members.
• For other religions/ communities:
  Christians, Parsis, and Muslims have no specific adoption law.
  Individuals from these communities must be appointed as guardians under the Guardians and Wards Act, 1890, which is inclusive of all communities and castes.

Did you know?

Steven Paul Jobs, born on February 24, 1955, to Abdul Fattah Jandali and Joanne Schieble, was adopted by Paul and Clara Jobs.
When appointing a guardian under the Guardians and Wards Act, 1890, the court considers the minor's personal law.
Once appointed as a guardian, one must comply with the provisions of the Guardians and Wards Act, 1890.

Minor Custody and Guardianship

A. Who is a Minor?

A minor is someone who has not reached the age of 18 years according to the Indian Majority Act of 1875.

B. Who is a Guardian?

A guardian is an individual who has responsibilities towards the care and supervision of a minor, concerning their body or property.

• The guardian's rights include decisions on the child's upbringing, religious matters, education, property management, etc.
• A guardian is obligated to act in the best interest of the minor.
• The welfare of the child is the primary consideration for the court in matters of custody and guardianship.
• Each community has its own laws regarding custody and guardianship.

C. The Guardians and Wards Act, 1890

• This Act is a secular law applicable throughout India concerning guardianship of children.
  Enacted during the British colonial period, it empowers the court to appoint a guardian for a minor child, regardless of the child's community.

D. The Hindu Minority and Guardianship Act, 1956

This Act, established in 1956, lays down regulations regarding custody and guardianship of Hindu children.

Guardian Types:

• Natural guardian
• Guardian appointed by the minor's parent's will
• Court-appointed or declared guardian

De-jure and De-facto Guardians

 Guardians can be either de-jure (legally authorized) or de-facto (exercising authority without legal sanction).

Types of De-jure Guardians:

• Natural guardians: Typically the father and mother of the child
• Testamentary guardians: Appointed by will
• Certificated guardians: Appointed by the court under the Guardians and Wards Act, 1890

E. Natural Guardianship in Hindu and Muslim Laws

Natural Guardian: Defined in Section 6 of the Hindu Minority and Guardianship Act, 1956.

For a Hindu minor boy or unmarried girl:

• The father is the natural guardian in respect of the minor's person and property.
• Following the father, the mother becomes the guardian.
• The mother's guardianship comes into play 'after' the father, meaning 'in the absence of' the father.
• Custody of a child below five years usually goes to the mother.
• A functional guardian, prioritizing the child's welfare, is responsible for guardianship regardless of being the father or mother.

Position under Muslim Law

• Muslim law does not recognize the mother as a guardian.
• The mother holds the 'right of hizanat,' granting custody during the child's early years.
• Testamentary guardian:
  A guardian appointed via 'will.'
  Under Hindu law, both parents can appoint a testamentary guardian.
  In Muslim law, only the father can appoint a testamentary guardian; the mother lacks this authority.