Adoption Under Hindu Law By Adoption Lawyers in Chandigarh
“Every child has a right to a family” and there is no better a rehabilitation measure for parent less and homeless children than adoption. Adoption is carried out in India under different Acts. In India, adoption of children by Hindu adults is governed by the Hindu Adoption and Maintenance Act, 1956 (here in after referred as” HAMA”). This legislation is enacted to provide the maintenance and all the rights, privileges and responsibilities that are attached to the relationship of the adopted children similar to biological child. Adoption Lawyers in Chandigarh
There are other legislations which also deal with the adoption:
1. The Guardians and Wards Act, 1890
2.Juvenile Justice (Care and Protection) Amendment Act, 2010
WHAT IS ADOPTION
As far as the concept of adoption is concerned it is very difficult to be define it in words. The Privy Council in Ramasubbayya v. Chanchu Ramayya, wherein sir Madhavan Nair, delivering this judgment of behalf of the board observed:
“The object of adoption is too fold
(i) to secure the performance of funeral rites of the person to whom the adoption is made; and
(ii) (ii) to preserve the continuance of his linage”.
It further defined Adoption as under:
“A juridical act creating between two person certain relations, purely civil, of paternity and affiliation.”
According to the Juvenile Justice (Care and Protection of Children) change Act, 2006, once a child is separated from his biological parents for good and becomes a legitimate child of his adoptive parents, he gets all the rights that are related to biological parents. Adoption Lawyers in Chandigarh
While under the Hindu Minority and Guardianship Act, 1956, the Guardian should be Natural Guardian or Guardian appointed by the Court. Natural Guardian for both the Boys and the Unmarried Girls is first the father and then the mother. Under Muslim Law, the father has a dominant position.
LEGAL PROVISIONS
One can adopt a child of each sex but no two children of the same sex which means if you have a son, you can adopt only a female child and vice-versa.Non-Hindu persons such as Muslims, Christians, Paris and Jews etc. who are governed by their own effected personal laws come under GAWA, 1890. A third Act has come into force besides HAMA and GAWA in the form of Juvenile Justice (care and protection of children) Act,2000 under which adoption can also be affected. Adoption Lawyers in Chandigarh
As per Supreme Court of India’s Direction, specific guidelines have been laid down by the Central Adoption Resource Authority (hereinafter referred as CARA), the apex controlling body in matter relating to adoption in India under the Ministry of Women and Child Development for legal adoption of Indian Children.
The HAMA only governs Hindus (Buddhists, Jains and Sikhs). The provisions of this Act mandate that a Hindu married couple or unmarried adults can only adopt a Hindu child (son or daughter).
The objectives of adoption are as follow:
1. To get old-age protection by the adopted child.
2. To perpetuate family name and fame.
3. To keep secured the family property.
4. To solemnize of last rites and rituals of parents.
THE HINDU ADOPTION AND MAINTENANCE ACT, 1956
Any male Hindu, having a sound mind, a major, and is eligible for adopting a child can adopt a child. If the male Hindu is married and wants to adopt a child, he has to take the consent of his wife as well before adoption, and the consent should be free. Adoption Lawyers in Chandigarh
Any Female Hindu, having a sound mind, a major, and is eligible for adopting a child can adopt a child. If the Female Hindu is married and wants to adopt a child, she has to take the consent of her husband as well before adoption, and the consent should be free.
Conditions for adoption by Hindu couples or single parent
1. When a Hindu male or a Female want to adopt a son, they should not have a son living whether legitimate or illegitimate, at the time of adoption.
2. When a male or a Female Hindu want to adopt a daughter, they should not have a daughter or son’s daughter living at the time of adoption.
3. If a male wants to adopt a daughter, he should be at least 21 years older than the adoptive daughter.
4. If a Female wants to adopt a son, she should be at least 21 years older than the adoptive son.
In the case of Inder singh v. Kartar Singh (AIR 1966 Punj 258) that the object of adoption is twofold: –
1. To secure performance of one’s funeral rites
2. To preserve the continuance of one’s lineage.
It has been held by Supreme Court in M. Gurudas v. Rasaranjan ( AIR 2006 SC 3275) that in order to prove valid adoption, it would be necessary to bring on records that there had been an actual giving and taking ceremony.
Section 9 of the Act lays down the capacity of person, who may give the child in adoption to another. No persons except the father or mother or the guardian of the child shall have the capacity to give in adoption.
• Capacity of the father to give in adoption: –
If the father is alive, he shall alone have the right to give in adoption but such right shall not be exercise save with the consent of the mother.
• Capacity of the mother to give in adoption: –
The mother may give the child in adoption if the father is dead or had completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court jurisdiction to be unsound mind.
• Capacity of the guardian to give in adoption: –
Where both the father and mother are dead or to be unsound mind or had finally renounced the world, is declare by the court then the guardian of a child may give the child in adoption with the following conditions laid down by the courts:-
1. That the adoption will be for welfare of the child.
2. That the applicant for permission has not received any payment in consideration of the adoption.
3. That no person has given any payment to the applicant for consideration of the adoption of child.
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Who Can Be Adopted?
i. The adopted child can be either male or female. Under Hindu Adoptions and Maintenance Act, 1956 the adopted child must fall under the Hindu category.
ii. The child also needs to be unmarried; however, if the particular custom or usage is applicable to the involved parties then the adoptee can be married.
iii. The child cannot be the age of sixteen or older, unless again it is custom or the usage is applicable to the involved parties.Adoption Lawyers in Chandigarh
iv. An adoption can only occur if there is not a child of the same sex of the adopted child still residing in the home. In particular, if a son were to be adopted then the adoptive father or mother must not have an alive legitimate or adopted son living with them.
Intercountry adoption
In India, the adoption of an Indian Child by a foreign citizen or NRI has been covered under the Guidelines i.e. Adoption of Children, 2015. These guidelines are made to stop the misuse or illegal use of children through adoption. As per the Supreme Court, a foreigner can adopt an Indian child before the age of 3 years. In the absence of any concrete act on intercountry adoption, the provisions of Guardians and Wards Act, 1890 will be followed for adoption.
• If a person wants to adopt an abused, surrendered child, that kind of intercountry adoption can be done as per the Juvenile Justice (Care and Protection of Children) Act, 2015.
• But the Guardians and Wards Act, 1890 does not have any provision regarding the adoption of orphans, abandoned child. Section 58 of this Juvenile Justice (Care and Protection of Children) Act defines that any Indian citizen of India, irrespective of their religion if someone is interested to adopt an orphan or abandoned or surrendered child, he/she have to apply for the same to a Specialised Adoption Agency (SAA).
LEGAL EFFECTS OF ADOPTION Adoption Lawyers in Chandigarh
Section 12 of Hindu Adoptions and Maintenance Act provides that after adoption, the adopted child loses all its ties with the natural family and is treated like a born child in the adoptive family. The adopted child is conferred with all the rights and privileges of a natural born child in the adopting family. On the other hand, such a child loses all his rights and privileges of a natural born child in the natural family.
In the landmark case of Basavarajappa v. Gurubasamma (S (2005) 12 SCC 290) supreme Court has held that on adoption, adoptee gets transplanted in adopting family with the same rights as that of natural-born son. Adopted child becomes coparcener in Joint Hindu Family property after severing all his ties with natural family.
WHAT IS A.C.A?
Adoption Coordinating Agency (ACA) as is popularly known, acts as a link between the prospective adoptive parents and the children waiting to join families in different adoption agencies. Previously known as Voluntary Coordinating Agency (VCA), it actively promotes Indian adoption, creates awareness for popularization of the concept of legal adoption.
THE GUARDIANS AND WARD ACT (GWA), 1860
In Hindu law, the different provisions with respect to Adoption are given but in personal laws like Muslim law, Christian Law, Parsis Law, no separate laws are given so they have to approach the court for adoption under the Guardians and Wards Act, 1890.
Under the Guardianship and Wards Act, 1890 if the party is willing to adopt a child, they have to file an application to the court and has to disclose their intention i.e. why they want to adopt a child. The court will give a date and, on that date, a hearing will be placed. The adoptive couple decide tells the court about the child they want to adopt. Last, the court will pass a decree and the adoption is finalized.
As per the Guardians and Wards Act, 1890 any child can be adopted as per some conditions:
1. The child is not Hindu
2. The child should be minor
3. An orphan or abandoned or surrendered child.
4. The child should be below 18 years of age
CONCLUSION
Once a child for good is separated from his biological parents and become a legitimate child of his adoptive parents and have all the rights that are related to adoptive parents. This means the adoptive child cannot marry other the adoptive child or real child of his adoptive parents, In the modern adoption laws, adopting a child is considered a good deed performed by humans. Generally, Adoption means wilfully adopt a Child and treated like one’s own Child. The nation’s children are supreme important asset.
Their nurture and solitude are responsibilities of nation. Children’s programmes should find a prominent part in national plans for the development of human resources so that children grow up to become robust citizens;physically fit, mentally alert and morally healthy endowed with the skills and motivation needed by the society. Equal opportunities for development to all children are the aim, as this will serve larger purposes of reducing inequality and increasing social justice.
Author: This article was written by Ishmeet Kaur, B.A. LLB, student of Government Mohindra Collage, Patiala.
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