Hindu Adoptions and Maintenance Act, 1956 | Family Law - CLAT PG PDF Download

Adoption

• In Hindu mythology, a son is believed to help parents conquer the world, a grandson grants immortality, and a great-grandson leads to the highest heaven. This underscores the deep-rooted desire for a son among Hindus, a practice evident since the Vedic period.
• Historically, parents without a son would adopt one, but only the husband could do so initially as the son was to inherit the father's property. Over time, widows gained the right to adopt under certain conditions, with the adoption considered as being for the deceased husband, a concept known as the 'doctrine of relation back'. This meant the adoption was retroactively linked to the husband's date of death, leading to various legal complications.
• The Hindu Adoptions and Maintenance Act, 1956, simplified and codified the laws surrounding adoption, allowing for the adoption of both boys and girls. Unmarried women and widows now have the right to adopt children in their own capacity.
• The essence of adoption lies in the ability of childless individuals to make another's child their own. It signifies the transfer of a child from their birth family to the adoptive family, severing ties with the biological family and becoming a full member of the new family. Once adopted, a child cannot be re-adopted or returned to their birth family, and they are also barred from divorcing their adoptive parents.

Capacity of a Male Hindu to Adopt 

• A male Hindu of sound mind and over 18 years old can adopt a son or daughter. If he has a living wife, her consent is required unless she has renounced the world, ceased to be a Hindu, or has been declared legally incapacitated.
• In cases of judicial separation, the husband's consent is necessary for adoption. In void marriages, the wife's consent is not needed.
• Consent can be express or implied. If the wife participates in the adoption ceremony without objection, her consent is implied.
• The adoption by married spouses is considered a family adoption, not individual. This ensures family harmony and prevents one spouse from adopting without the other's consent.

 Who Can Give the Child in Adoption? 

• The capacity to give a child in adoption lies solely with the father, mother, or guardian of the child. If the father is alive and not disqualified, he alone has the right to give the child in adoption.
• The father's right to give the child in adoption requires the mother's consent unless she has completely and finally renounced the world, ceased to be a Hindu, or been declared by a court to be of unsound mind.
• The mother can give the child in adoption if the father is dead, has completely and finally renounced the world, has ceased to be a Hindu, or has been declared by a court to be of unsound mind.
• The guardian can give the child in adoption when both parents are deceased, have completely and finally renounced the world, have abandoned the child, have been declared by a court to be of unsound mind, or when the child's parentage is unknown. In such cases, the guardian may give the child in adoption with the court's prior permission.

 Persons Who May Be Adopted 

• To be eligible for adoption, the person must be a Hindu, not already adopted, and not married unless a custom allows married individuals to be adopted.
• Customs or usages can relax restrictions on adopting married individuals or those over 15 years of age.
• If adopting a son, the adoptive parent must not have a Hindu son, son's son, or son's son's son alive at the time of adoption.
• If adopting a daughter, the adoptive parent must not have a Hindu daughter or son's daughter alive at the time of adoption.
• The right to adopt a son or daughter means one cannot adopt more than one daughter and/or one son.
• In the case of adopting an opposite-sex child, there must be a 21-year age difference, with the adoptive parent being the elder by 21 years.
• Simultaneous adoption of the same child by multiple persons is not allowed.
• The child to be adopted must be actually "given and taken" in adoption by the parents or guardian concerned, indicating the intent to transfer the child from the family of birth to the adoptive family.

Other Essential Conditions for Valid Adoption 

• If adopting a son, the adoptive parent must not have a Hindu son, son's son, or son's son's son alive at the time of adoption.
• If adopting a daughter, the adoptive parent must not have a Hindu daughter or son's daughter alive at the time of adoption.
• In the case of opposite-sex adoption, there must be a 21-year age difference, with the adoptive parent being the elder by 21 years.
• The same child cannot be adopted simultaneously by two or more persons.
• The child to be adopted must be actually "given and taken" in adoption, indicating the intent to transfer the child from the family of birth to the adoptive family.

Proof of Adoption 

• In the case of Khagembam Sadhu alias Rabei Singh v. Khangembam Ibohal Singh, the Gauhati High Court examined the proof of adoption. The court accepted the evidence of giving and taking adoption performed at the adoptive father's house, along with the same-day ceremonies according to Manipur custom.
• In Doctor Nahak v. Bhika Nahali, the validity of adoption was challenged. The natural father's evidence was considered important, but if the person alleged to have taken the child in adoption denies it, clear evidence of giving and taking is necessary. The Orissa High Court emphasized the need for corroborating evidence and clear circumstances supporting the natural father's claim.
• In Prafulla Bala Mukherjee v. Satish Chandra Mukherjee, the adoptive mother sought rights over property built by the adopted son. The court ruled that mere facts like allowing the adoptive mother to live in the adopted son's house were not proof of adoption. Other facts disproving adoption were highlighted, such as the adopted son considering his natural mother as his mother until death.
• A child can be adopted by the adoptive mother herself or by someone authorized through a special power of attorney. All formalities of giving and taking were performed between the natural parents and the adoptive mother's attorney, and the adoption was deemed valid by the Punjab and Haryana High Court.

 Registered Deeds of Adoption in Court 

• Section 16 of the Act states that when a registered document recording an adoption is presented in court, it is presumed to comply with the Act's provisions unless disproved. It is suggested that registration should be mandatory for all adoptions to prevent litigation and fake claims.

The Effect of Adoption 

• According to section 12 of the Act, an adopted child is considered the child of their adoptive parents for all purposes from the date of adoption. The ties with the birth family are severed and replaced by those in the adoptive family.
• However, the adopted child cannot marry someone they could not have married if they had remained in their birth family. Any property vested in the adopted child before adoption remains with them, subject to the obligation to maintain relatives in the birth family. The adopted child also does not divest anyone of any estate vested in them before adoption.
• Regarding coparcenary property rights in the birth family, there is debate on whether a coparcener's share in Mitakshara Joint Hindu Family property vests in the child after adoption. Some argue it does, while others believe it relates only to property vested before adoption.
• The Andhra Pradesh High Court ruled that a person in a Mitakshara family retains a right in undivided property even after adoption, but the parents giving the child in adoption can enter agreements restricting the adoptive parents' rights over the property.
• There is a complete prohibition on any payment in consideration of adoption. Adoption is not a sale but an act of love and affection. Any payment in consideration of adoption is punishable by imprisonment, fine, or both. Prosecution under the Act requires prior permission from the State government.

 Case Laws 

• Ankush Narayan v. Janabai  : In this case, the court ruled that when a widow adopts a son, the adopted child becomes the son of the deceased adoptive father. The ties within the adoptive family remain unchanged compared to the old Hindu law regarding family connections.
• Guradas v. Rasaranjan  : The court emphasized that adoption occurs when the actual giving and taking of the child happens, not merely when a religious ceremony like Datta Homam is performed. For a valid adoption, it is crucial to have evidence of the giving and taking ceremony.

Conclusion

According to the law, a person adopting should follow the legal procedures to avoid any future issues. The Act outlines various limitations and important provisions that need to be adhered to during the adoption process.

Maintenance Types under Hindu Laws 

• Under Hindu maintenance laws, there are two types of maintenance that a wife can claim when filing a maintenance petition through her divorce attorney. 
• The burden of proving the husband's income shifts to him, as he has the right to defend the maintenance petition. The types of maintenance are as follows:

1. Interim Maintenance 

• When a wife files a maintenance petition, the court may grant her interim maintenance, which the husband must pay from the date of application until the petition is dismissed.
• This type of maintenance is also known as Maintenance Pendente Lite and is intended to cover the wife's legal expenses.
• Interim maintenance is awarded by the court if the wife has no source of income to support herself.
• There are no fixed laws regarding the amount of interim maintenance; it is at the court's discretion to determine what is sufficient for the wife's sustenance during the proceedings.
• Section 24 of the Hindu Marriage Act, 1955, allows both husband and wife to apply for interim maintenance through their divorce advocates.

2. Permanent Maintenance 

• Permanent maintenance is paid by the husband to his wife in the event of divorce, and the amount is determined through a maintenance petition filed by a divorce lawyer in India.
• Section 25 of the Act empowers the court to order the husband to pay maintenance to his wife either as a lump sum or a monthly amount for her lifetime.
• However, the wife may become ineligible for maintenance if her circumstances change.

Under  Section 18 of the Hindu Adoption and Maintenance Act, 1956  , a wife has the right to live separately from her husband without losing her right to claim maintenance. The law allows a wife to live apart in cases such as:

• The husband deserting her without just cause.
• The husband subjecting her to cruelty.
• The husband suffering from virulent leprosy.
• The husband having extramarital affairs.
• The husband converting to another religion.

However, a wife is not entitled to claim maintenance if:

• She has converted to another religion and ceased to be a Hindu.
• She is guilty of adultery and has engaged in physical relations with another man.
• She has remarried after the divorce.

[Question: 1739223]

Calculation of Maintenance under Hindu Laws

• The position and status of both the husband and wife.
• Whether the wife has a genuine claim for maintenance.
• If the wife is living separately, whether her reasons for doing so are justified.
• The wife's total property and income.
• The husband's total property, income generated from this property, and other sources of income.
• The total number of dependents and their expenses borne by the husband.
• The husband's personal expenses.

Quantum of Maintenance 

 Case Reference:  Waraj Garg v. K.M. Garg, AIR 1978 Del. 296 

• Under Hindu law, it is the husband's duty to maintain his wife. However, the wife does not have a corresponding duty to maintain her husband, as the husband is typically the wage earner.
• If the wife has her own income sufficient to maintain herself, the husband may not be required to pay her any maintenance.

Conclusion

• In many developing countries, there's a surprising situation where social progress is slower than legal reforms. The issue of dowry is deeply ingrained in society, and while laws are important, they alone cannot eliminate this practice. Instead, legislation can support and strengthen the social movement against dowry.
• Reflecting on the words of Jawaharlal Nehru, it's clear that laws alone cannot solve deep-seated social issues. However, they play a crucial role by providing necessary support, education, and legal backing to shape public opinion. In this way, legislation can be a vital tool in the fight against dowry.