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

Understanding Adoption

A. What is Adoption?

• Adoption is the legal process through which a person becomes the parent of a child who is not their biological offspring. This establishes a formal relationship between the adoptive parent and the child, despite the absence of blood relations. In essence, adoption involves taking a child into your family and raising them as your own, even though they were not born to you.
• Historically, adoption served purposes such as ensuring proper funeral rites and maintaining family lineage.

B. Statutes Governing Adoption

• The primary law governing adoption in India is the Hindu Adoption and Maintenance Act, 1956.
• This Act applies exclusively to Hindus and outlines the legal procedures for Hindu adults to adopt children and the responsibilities for maintaining family members.
• For individuals of other religions in India, such as Christians, Parsis, and Muslims, there are no specific adoption laws akin to the Hindu Adoption and Maintenance Act.
• Instead, these individuals must seek guardianship for adoption purposes under the Guardians and Wards Act, 1890, which is applicable to all communities.

Minor Custody and Guardianship

A minor is a person who is under 18 years of age and is considered a child until they reach this age, according to the Indian Majority Act of 1875.

Who is a Guardian?

• A guardian is someone who is responsible for taking care of a minor and looking after their interests, especially regarding their well-being and property.
• Guardians have the authority to make important decisions about the child's upbringing, including aspects like their religion, education, and how their property is managed.
• It is crucial for a guardian to always act in the best interests of the minor, putting their needs and welfare first.
• When it comes to cases of custody and guardianship, the court's main concern is the welfare of the child.
• It's important to note that laws regarding custody and guardianship can vary depending on the community.

The Guardians and Wards Act, 1890

• The Guardians and Wards Act, 1890 is a law that deals with the guardianship of children in India.
• This Act is secular, meaning it applies to people of all religions in India.
• It was passed during the time when India was under British colonial rule.
• The Act gives courts the power to appoint guardians for minors when necessary.
• Even though the Act is applicable all over India, local community laws can also influence how guardianship issues are handled in different areas.

The Hindu Minority and Guardianship Act, 1956

• The Hindu Minority and Guardianship Act, 1956 is a law in India that governs the guardianship and custody of Hindu children.
• It defines who can be a guardian and outlines the responsibilities and powers of guardians over Hindu minors.
• The Act aims to protect the interests of Hindu children by ensuring that their guardians act in their best interests and within the legal framework.

Types of Guardians under the Act

The Hindu Minority and Guardianship Act, 1956, identifies different types of guardians responsible for the welfare of Hindu minors:

• Natural Guardian: This is the parent who has the legal right to take care of the child.
• Guardian appointed by the parents' will: This guardian is chosen by the child's parents through a legal document called a will.
• Court-appointed Guardian: This guardian is designated by a court to take care of the child when necessary.

De-jure and De-facto Guardians

• De-jure Guardians are individuals who are legally recognized as guardians of a minor, with specific rights and responsibilities outlined by law.
• De-facto Guardians, on the other hand, are individuals who take on the role of a guardian in practice, even if they do not have legal authority to do so.

Types of Guardianship

• Natural Guardians: Typically, the child's father and mother.
• Testamentary Guardians: Individuals appointed as guardians through a will.
• Certificated Guardians: Guardians appointed by the court under the Guardians and Wards Act of 1890.

Natural Guardianship in Hindu Law

According to Section 6 of the Hindu Minority and Guardianship Act, 1956:

• For a Hindu minor boy or an unmarried girl:
• The father is the natural guardian for both the minor's person and property.
• The mother becomes the guardian only in the father's absence.
• Custody of a child under five years usually goes to the mother.
• A functional guardian, prioritising the child's welfare, can be either the father or mother.

Natural Guardianship in Muslim Law

• Under Muslim law, the mother is not recognised as a guardian.
• However, she has the 'right of hizanat,' which grants her custody of the child during their early years.

Testamentary Guardianship

• In Hindu Law: Both parents can appoint a testamentary guardian under certain conditions.
• In Muslim Law: Only the father has the authority to appoint a testamentary guardian; the mother does not have this right.