Adoption: All About Adoption under the Hindu Adoption and Maintenance Act of 1956
Introduction To The Hindu Adoption And Maintenance Act Of 1956
The Hindu Adoption and Maintenance Act of 1956 (referred to as The HAMA, 1956) was enacted in the year 1956 and came into effect on 21st December, 1956. This act governs adoption under the Hindu Law. It applies to Hindus by religion and the term ‘Hindus’ as defined under section 2 of the Act also includes:
- a Lingayat, Veerashaiva or a follower of the Brahmo, Prarthana or Arya Samaj.
- Buddhists, Jains and Sikhs by religion. Muslims, Christians, Parsis and Jews are not covered under the scope of this act.
- a legitimate or illegitimate child, one of whose parents are Hindus, Buddhists, Jains or Sikhs and has been brought up as a member of the tribe, community, group or family to which one of such parent belongs or belonged;
- a legitimate or illegitimate child, who has been abandoned by both the parents or whose parentage is not known and who has been brought up as a Hindu, Buddhist, Jaina or Sikh, and
- a convert or reconvert to the Hindu, Buddhist, Jain or Sikh religion.
The HAMA, 1956 extends to the whole of India, except the state of Jammu and Kashmir.
Purpose Of Adoption:
- to get a child for the childless.
- to get protection and care during old-age.
- to carry on the family name and lineage.
- to secure the family property from falling into someone else’s hands.
- to fulfill religious obligations and perform rituals on funeral post the death of the persons.
What Makes an Adoption Just and Valid? (The Essentials)
Section 6 of the HAMA, 1956, states that all adoptions shall be void-ab-initio or invalid unless:
- the person who is adopting, not only has the capacity but also the right to take in adoption.
- the person giving in adoption has the capacity to so give.
- the person who is being taken in adoption is capable of being so taken.
- the adoption is made in consonance with the conditions enumerated in Chapter-II of the Act.
For an adoption to be valid, it needs to be proved that there took place a real and proper giving and taking ceremony.
Additional Conditions That Makes An Adoption Valid:
Given below are the requisites of a valid adoption:
- an adoptive mother or father is prohibited from adopting more than one child of the same sex.
- if a male is adopting a child of the same sex , then the adoptive father must be at least 21 years older than the child who has to be adopted. Similarly, if a female is adopting a child of the same sex, then the adoptive mother needs to be at least 21 years older than the child being so adopted.
- two or more parents can’t adopt the same child. There needs to be an actual giving and taking ceremony, thereby suggesting that there has to be a transfer of the child from his/her family of birth.
Who Can Take In Adoption?
According to Section 7 of the HAMA, 1956, any male, who is a Hindu can adopt if he fulfills the following conditions:
- he is a major.
- he is of sound mind.
- he shall not adopt any child if he has a wife living at that time, except with her consent unless and until the wife has renounced the world or her Hindu religion or has become of unsound mind, as per the declaration of a competent Court.
Section 8 of the HAMA, 1956, enumerates that any female, who is a Hindu, can adopt a child if she complies with the following:
- she is a major.
- she is of sound mind.
- she is unmarried or in case married, her marriage has been dissolved or her husband is no more or has completely renounced the world as well as his Hindu religion or has been so declared by a Court of competent authority to be of an unsound mind.
Who May Give In Adoption?
Section 9 of the Hindu Adoption and Maintenance Act, 1956, gives a list of persons who are capable of giving in adoption, which is provided herein below:
- only the parents or the legal guardian of a child shall have the power to give in adoption.
- if the father is alive, then he alone has the right to give in adoption, provided he has the consent of his living wife, unless and until she has ceased to be a Hindu or has been declared to be of an unsound mind by a competent Court or has renounced the world. Similarly, a mother can give in adoption if the father of the child is no more, or has ceased to be a Hindu or has renounced the world or has been declared as a person of unsound mind by a competent Court.
- if both the parents of the child are dead or have been declared to be persons of unsound mind by a competent Court or have renounced the world completely or the parentage of the child is unknown or if the child was abandoned, then the guardian of the child may give in adoption with the prior permission of the Court, provided that the Court while providing such permission is satisfied that such an adoption is for the child’s welfare and that the wishes of the child will be taken into consideration, with regard being given to the age and maturity of the child. The court while granting permission needs to be also satisfied that nor has the applicant seeking permission received or agreed to receive and neither has any person given or made or agreed to make or give to the applicant any remuneration or reward in consideration of the adoption, except as so authorised by the Court.
Who Can Be Adopted?
Under the provisions of the HAMA, 1956, a person can be adopted if:
- he or she is a Hindu.
- he or she has not been adopted already.
- he or she is not married, unless there happens to be a custom that applies to parties which permits them to be taken in adoption, even if they are married.
- he or she has not completed the age of fifteen years, unless there is a custom or usage approving such adoption of persons who have not completed 15 years of age.