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ADOPTION

Meaning ofAdoption.Manu defines an adopted son as followsA son equal in caste and

affectionately disposed whom his mother or father (or both) give with water at a time of

calamity, is known as theDattrirna (=Dattaka) son. Thus, ad

option is the transplantation of ason from the family in which he is born, to another family where he is given by the naturalparents by way of gift. The adopted son is then taken as being born in the new family and

acquires rights, duties and status there only, and his tie with the old family comes to an end. Inall texts it is agreed that adopted son is given away. Under the textual Hinds - Law, the main

motive of adoption was religious. The religious motive is undeniably evident from Baudhsyanas text. I take thee for fulfilment of my religious duties. I take thee to continue the line of my

ancestors.

Sec- 6 Essential Ofa Valid Adoption:- Sec 6 of the Act laiddown following conditions for a

valid adoption;

Requisites of a valid adoption.No adoption shall be valid unless(i) the person adopting has the capacity and also the right to take in adoption;

(ii) the person giving in adoption has the capacity to do so;(iii) the person adopted is capable of being taken in adoption;

(iv) the adoption is made in compliance with the other conditions mentioned inthis chapter.

In short, the essentials of a valid adoption are :(1) The person adopting has the capacity and also right to take in adoption (Sections 7 and 8).

(2) The person giving in adoption has the capacity to do so (Section 9).(3) The person adopted is capable of being taken in adoption (Section 10).

(4) The adoption is ma

de in compliance with the other con

ditions mentione

din

Who May Adopt ?Sections 7 and 8 of the Hindu Adoptions and Maintenance Act, 1956, deal

with the person who may adopt a child. Section 7 deals with adoption by a male and Section 8

deals with adoption by a female. Whether male or female, the person who is adopting a childmust have capacity and also the right to take a child in adoption.

Capacityand right.According to section 6 of the Act one of the conditions to make the

adoption valid is that the person taking in adoption must have the capacity to adopt as well as theright to adopt. So the capacity and right to take in adoption are two different things. A person

may have the capacity to adopt but at the same time he maynot have right to adopt. To constitute a valid adoption, therefore, both things must be present.

Capacityofa Maletotakeinadoption.Section 7 lays down the capacity of a male Hindu totake a child in adoption and puts certain formalities, as will be evident from the section itself

which runs as follows:Any male Hindu who is of sound mind and is not minor has the capacity to I take a son or

daughter in adoption: Provided that, if he has a wife living, he shall not adopt except with the

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consent of his wife unless the wife has completely and finally renounced the world w] ceased tobe a Hindu or has been declared by a court of competent jurisdiction lo of unsound mind.

Explanation.Ifa person has more than one wife living at the time of adoption the consent of all

the wives is necessary unless the consent of any one of them. unnecessary for any of the reasons

specified

in the preced

ing proviso.This section abrogates the old Hindu law to a considerable extent and makes & consent of wifeor wives an essential requisite of the valid adoption. It also provides dim child of any sex may be

taken in adoption. Therefore the religious aspect of adoption under the Act, has vanished andnow adoption has the same secular significance to I Hindu as it had among Jams and Sikhs.

Minorityand unsoundness.Two qualifications are necessary for a m Hindu to be capable to

take a child in adoption : (i) the person must be of sound mind(ii) he must not be a minor. It was therefore held that every male Hindu who is ( sound mind may

lawfully take a son in adoption if he has attained the age of majority Soundness of mind istherefore an essential requirement of a valid Hindu adoption and to be proved when challenged.

So far as the soundness of min

dis concerne

dthis con

dition existe

deven un

der the ol

dHin

duLaw. The adoption made by a person who at the time of adoption is unsound mind, though not a

congenital lunatic is altogether invalid. The condition that the person must not be a minor is anew one. Now after the passing of the Act a minor has no right to adopt. Under the pure Hindu

Law, as we have seen, the person adoption was required to have reached the age ofdiscretion.According to Section 3 (c) of the Hindu Adoptions and Maintenance Act minor means a person

who has not completed his or hr age of 18 years. In view of this definition he or she would ceaseto be a minor only after attaining the age of 18 years even though he or she is placed in charge of

a Court of Wards. Any adoption by a minor after the passing of this Act is void and cannotbecome valid by subsequent ratification.

Consentof wife.For the adoption by a male it is necessary for him to take the consent of hiswife or wives, if any. This provision has been, for the first time, incorporated in this Act. The

consent of the wife is absolutely necessary. So if the consent of the wife has not been obtainedthe adoption will be invalid in spite of the fact that all the formalities required by law have been

complied with. The intention of the Legislature was to give women also the right to express theiropinion in this matter which is very important and which also affects them. The wife becomes

the adoptive mother of the child adopted by her husband : hence it is just and equitable that sheshould also have some voice in adoption. There may be a case where the husband wants to adopt

a particular boy but his wife is not at all in favour of taking that boy in adoption, in such a case itwould be too much to compel her to accept that boy as her adopted son. Where the consent of

wife or wives, as the case may be, has not been obtained according to law, the adoption will beinvalid and the same cannot be made valid by the application of the doctrine offactum valet.

Supreme Courtof India Ghisalal Vs. Dhapubai (D) By Lrs.on 12 January, 2011

1. Whether mere presence of Dhapubai in the ceremonies performed by her husband Gopalji for

adoption of Ghisalal amounted to her consent as contemplated by the proviso to Section 7 of the

Hindu Adoptions and Maintenance Act, 1956 (for short, `the 1956 Act') is the main questionwhich arises for consideration in these appeals filed against judgment dated 12.9.2000 of the

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learned Single Judge of the Madhya Pradesh High Court, Indore Bench whereby he partlyallowed the second appeals filed by the parties and modified the decree passed by the lower

appellate Court, which had substantially reversed the decree passed by the trial Court in a suit fordeclaration, partition and possession.

2. Although, Gopalji, Dhapubai and

Sund

erbai who were impleaded

asdefen

dant Nos.1 to 3 inSuit No.54A of 1973 filed by Ghisalal diedduring the pendency of litigation, for the sake of

convenience, we shall refer to them by their names and not by the description given in the suit

and the appeals.

3. The pleaded case of Ghisalal was that in Baisakh of Samvat 2016 (1959) his father, Kishanlalgave him in adoption to Gopalji; that ceremonies like putting of tilak on his forehead and

distribution of sweets were performed; that registereddeed of adoption was executed byKishanlal and Gopalji on 25.6.1964; that Gopalji had inherited certain agricultural lands of

villages Jeeran, Arnya Barona, Kuchrod, a two storeyed house and one court-yard from his fatherRoopji; that after adoption, he became coparcener in the family of Gopalji and thereby acquired

right in the suit properties; that Gopalji executed

three Gift Deed

sd

ated

22.10.1966 whereby hetransferred lands of villages Jeeran, Arnya Barona and Kuchrod to his wife Dhapubai and the

latter sold a portion of land in survey No.945 of village Kuchrod to Sunderbai vide Sale Deeddated 19.1.1973; that the gift deeds executed by Gopalji in favour of Dhapubai were fraudulent

and were intended to deprive him of his right in the ancestral properties and that even in hiscapacity as karta of the family, Gopalji could not have gifted more than 1/3rd of his share. On the

basis of these pleadings, Ghisalal prayed that a decree of partition be passed and he be given onehalf share in the suit properties. He further prayed that Gopalji may be directed to give an

account of the agricultural produce and pay him his share.

4. In the written statement filed by him, Gopalji pleaded that he had not adopted Ghisalal and no

ceremony was performed

; that the so called

ad

optiondeed

was obtained

by playing fraud

and

thesame was not binding on him; that the suit properties were not ancestral and that he was entitled

to execute gift deeds in favour of his wife. In her separate written statement, Dhapubai alsodenied the factum of the adoption of Ghisalal by Gopalji and claimed that she had not given

consent for the same. She then pleaded that if by taking advantage of the simplicity of Gopalji,the plaintiff obtained some writing ordeed, the same is not binding on them. She further pleaded

that the gift deeds were valid and Ghisalal has no right to challenge the alienation of property byher husband.

5. After filing of the written statement, Dhapubai sought and was granted leave to amend the

written statement whereby she pleaded that Gopalji had earlier executed registered Gift Deeddated 29.11.1944 in her favour in respect of the lands comprised in Survey Nos.2097, 2763 and

3170 (old Survey Nos.2856, 3042/2 and 3528) of village Jeeran and she was in possession of thesame. As a sequel to this, Ghisalal amended the plaint and pleaded that Gift Deeddated

29.11.1944 was not valid because the land of village Jeeran was not capable of being gifted and,in any case, the same was not binding on him. He further pleaded that Gift Deeddated

29.11.1944 was not acted upon inasmuch as the property had not been transferred in the name ofDhapubai.

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6. During the pendency of the suit, Gopalji executed registered Will dated 27.10.1975 purportingto bequeath the suit properties to his wife Dhapubai. After some time, Gopalji died.

7. In the light of the pleadings of the parties, the trial Court framed the following issues:

1) Whether the suit properties mentioned

in Para-6 of the plaint are the property of Joint HinduFamily?

2) Whether the plaintiff is the legally adopted son ofdefendant No.1 and 2?

3) Whether the Gift Deeddated 22.10.66 is illegal and void? 4) Whether the sale deeddated

19.1.73 has no effect on the plaintiff?

5) Whether the court fee has been properly paid? 6) Whether the statement made by thedefendant in Suit No. 76 of 1964 is binding on the defendants as per the law of estopple?

7) Whether the land

s mentioned

in Paragraph 6 of the reply had

been gifted

on 29.11.1944 andwhat is its effect? 8) Relief and expenses.

8. After considering the pleadings and evidence produced by the parties, the trial Court held as

under:

(1) The suit properties were ancestral properties of Gopalji.(2) Ghisalal was validly adopted son of Gopalji and the onsent of Dhapubai can be presumed

from her presence in the adoption ceremonies.(3) Gift Deeds dated 22.10.1966 executed by Gopalji in favour of Dhapubai and Sale Deeddated

19.1.1973 executed by her in favour of Sunderbai were invalid.

(4) Will dated 27.10.1975 executed by Gopalji in favour of Dhapubai was invalid.

(5) Gift Deeddated 29.11.1944 executed by Gopalji in favour of Dhapubai was not valid

inasmuch as there was no acceptance by the donee and alienation of ancestral property byGopalji in favour of his wife was not for a pious purpose.

11. While admitting the second appeal filed by Ghisalal, the High Court framed the following

substantial questions of law:

(1) What would be the respective shares of the plaintiff- appellant anddefendant No.1 Dhapubai

in the suit properties according to law in case the Will Ex.D.2 is hel

dto have been prove

dandwhat would be their shares in case it were to be held otherwise?

(2) Whether the execution and attestation of the Will Ex.D/2 have been proved in accordance

with law?

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(3) Whether there is legal evidence to prove the gift of the properties comprised in Ex.D/1 byGopal in favour of Dhapubai?

(4) Whether the lower Court has acted without jurisdiction or erroneously in giving directions

with respect to the apportionment of the plaintiff's share in the suit land?

12. In the second appeal filed by Dhapubai, the High Court framed the following substantialquestions of law:

(1) Whether there is any legal evidence on record to prove the consent of Mother Dhapubai asrequired by Section 7 of the Hindu Adoption and Maintenance Act, 1956 for the valid adoption

of plaintiff Ghisalal?

(2) Whether the court below had jurisdiction to impose a condition that Dhapubai will not get thelands situated in village Kuchhdod?

(3) Whether the find

ing of the Court below that suit properties are ancestral is perverse?

15. Shri Nikhil Majithia, learned counsel for Dhapubai argued that even though all the Courtsconcurrently held that Ghisalal was validly adopted by Gopalji, the finding recorded on this issue

is liable to be set aside because his client had not given consent for the adoption. Learnedcounsel submitted that the plaint filed by Ghisalal was totally bereft of the material particulars

regarding the date, time and place of adoption as also the crucial ceremony of give and take andthe Courts below as well as the High Court committed serious error by recording a finding that

the adoption was validly made and that too by presuming the consent of Dhapubai. Learnedcounsel emphasized that mere presence of Dhapubai at the place where the ceremonies of

adoption are said to have been performed could not be made basis for assuming that she had

willingly consented

to the adoption of Ghisalal by Gopalji. He submitte

dthat the consentcontemplated by the proviso to Section 7 of the 1956 Act is mandatory and unless the consent of

the wife is proved, the adoption cannot be treated valid. In support of this argument, Shri

Majithia placed reliance on the judgments of this Court in Kashibai v. Parwatibai (1995) 6

SCC 213 and BrajendraSingh v.Stateof M.P. (2008) 13 SCC 161. Learned counsel also

assailed the High Court's finding on the legality of the Will executed by Gopalji in favour ofDhapubai and argued that examination of one attesting witness was sufficient to prove execution

of the Will. Learned counsel supported the impugned judgment insofar as it relates to Gift Deeddated 29.11.1944 and argued that even if this Court was to approve the finding recorded by the

Courts below on the issue of Ghisalal's adoption, his challenge to Gift Deeddated 29.11.1944should be treated as misconceived and negatived because the adoption cannot relate back to any

date prior to 1959.

16. We have considered the respective submissions and gone through the written arguments filedby the learned counsel. Fordeciding the question whether the adoption of Ghisalal by Gopalji

was valid, it will be useful to notice the relevant provisions of the 1956 Act. The same read asunder:

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6. Requisites of a valid adoption. -.

7. Capacity of a male Hindu to take in adoption. -

8. Capacity of a female Hindu to take in adoption. -

12. Effects of adoption. -

16. Presumption as to registereddocuments relating to adoption.

17. Section 6 reproduced above enumerates the requisites of a valid adoption. It lays down that

no adoption shall be valid unless the person adopting has the capacity as also the right to take inadoption; the person giving in adoption has the capacity to do so; the person adopted is capable

of being taken in adoption, and the adoption is made in compliance with the other conditionsmentioned in Chapter II. Section 7 lays down that any male Hindu who is of sound mind and is

not minor has the capacity to take a son or a daughter in adoption. This is subject to the rider

enshrined

in the proviso which laysdown that if the male Hin

du has a wife living then he shallnot adopt except with the consent of his wife unless she is incapacitated to give the consent by

reason of her having completely and finally renounced the world or her having ceased to be a

Hindu or she has been declared by a court of competent jurisdiction to be of unsound mind. Theexplanation appended to Section 7 lays down that if a person has more than one wife living at the

time of adoption, then the consent of all the wives is sine qua non for a valid adoption unlesseither of them suffers from any of the disabilities specified in the proviso to Section 7. Section 8

enumerates the conditions, which must be satisfied for adoption by a female Hindu. Section 12deals with effects of adoption. It declares that from the date of the adoption, an adopted child is

deemed to be a child of his/her adoptive father or mother for all purposes and his ties in thefamily of his or her birth shall stand severed and replaced by those created in the adoptive

family. Proviso (a) to this section contains a restriction on the marriage of adopte

dchil

dwith aperson to whom he or she could not have married if he or she had continued in the family of his

or her birth. Clause (b) of the proviso saves the vested right of the adopted child in the propertysubject to the obligations, if any, attached to the ownership of such property, including the

obligation to maintain relatives in the family of his or her birth. Likewise, clause (c) to theproviso lays down that the adopted child shall not divest any person of any estate vested in him

or her before the date of adoption. Section 16 which embodies a rule of presumption lays downthat whenever any document registered under any law for the time being in force evidencing

adoption and signed by the person giving and person taking the child in adoption is producedbefore any court, then it shall presume that the adoption has been made after complying with the

provisions of the Act unless proved otherwise.

18. In Indian society, a male spouse enjoyed the position ofdominance for centuries together.

This was particularly so in Hindu families. Under the old Hindu Law, a Hindu male had anabsolute right to adopt a male child and his wife did not have the locus to question his right or to

object to the adoption. A wife could adopt a son to her husband but she could not do so duringher husband's lifetime without his express consent. After his death, she could adopt a son to him,

in certain parts of India, only if he had expressly authorized her to do so. In other parts of India,

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she could adopt without such authority. However, in no case a wife or a widow could adopt a sonto herself. An adoption by a woman married or unmarried of a son to herself was invalid and

conferred no legal rights upon the adopted person. A daughter could not be adopted by a male ora female Hindu. The physical act of giving was a prime necessity of the ceremonial requirements

relating to adoption. As to datta homam, that is, oblations of clarified butter to fire, the law was

not finally settled

and

there wasd

ivergence of jud

icial opinion.

20. The term `consent' used in the proviso to Section 7 and the explanation appended thereto has

not been defined in the Act. Therefore, while interpreting these provisions, the Court shall haveto keep in view the legal position obtaining before enactment of the 1956 Act, the object of the

new legislation and apply the rule of purposive interpretation and if that is done, it would bereasonable to say that the consent of wife envisaged in the proviso to Section 7 should either be

in writing or reflected by an affirmative/positive act voluntarily and willingly done by her. If theadoption by a Hindu male becomes subject matter of challenge before the Court, the party

supporting the adoption has to adduce evidence to prove that the same was done with the consentof his wife. This can be done either by producing document evidencing her consent in writing or

by lead

ing evidence to show that wife ha

dactively participate

din the ceremonies of a

doptionwith an affirmative mindset to support the action of the husband to take a son or a daughter in

adoption. The presence of wife as a spectator in the assembly of people who gather at the placewhere the ceremonies of adoption are performed cannot be treated as her consent. In other

words, the Court cannot presume the consent of wife simply because she was present at the timeof adoption. The wife's silence or lack of protest on her part also cannot give rise to an inference

that she had consented to the adoption.

21. At this stage, we may notice some precedents which have bearing on the interpretation ofproviso to Section 7 of the 1956 Act.

InKashibai v. Parwatibai (supra), this Court was calle

dupon to consi

der whether in theabsence of the consent of one of the two wives, the adoption by the husband could be treated

valid. The facts of the case show that plaintiff No.1 anddefendant No.1 were two widows ofdeceased Lachiram. Plaintiff No.2 was daughter of Lachiram from his first wife Kashibai and

defendant No.2 was the daughter from his second wife Parwati. Defendant No.3, Purshottam sonof Meena Bai and grandson of Lachiram. The plaintiffs filed suit for separate possession by

partition of a double storey house, open plot and some agricultural lands. The defendantscontested the suit. One of the pleas taken by them was that Purshottam son of Meena Bai had

been adopted by deceased Lachiram vide registereddeed of adoption dated 29.4.1970, who hadalso executeddeed of Will in favour of the adopted son bequeathing the suit properties to him

and thereby denying any right to the plaintiffs to claim partition. The trial Court decreed the suitfor separate possession by partition by observing that the defendants have failed to prove the

adoption of Purshottam by Lachiram and the execution of Will in his favour. The High Courtreversed the judgment of the trial Court and held that the defendants had succeeded in proving

execution of the deed of adoption and the deed of Will in accordance of law and as such theplaintiffs were not entitled to any share in the suit properties. On appeal, this Court reversed the

judgment of the High Court and restored the decree passed by the trial Court. On the issue ofadoption of Purshottam, this Court observed: "It is no doubt true that after analysing the

parties' evidence minutely the trial court took a definite view that the defendants had failed to

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establish that Plaintiff 1, Defendant 1 anddeceased Lachiram had taken Defendant 3, Purshottamin adoption. The trial court also recorded the finding that Plaintiff 1 was not a party to the Deed

of Adoption as Plaintiff 1 in her evidence has specifically stated that she did not sign the Deed ofAdoption nor she consented for such adoption of Purshottam and for that reason she did not

participate in any adoption proceedings. On these findings the trial court took the view that the

alleged

adoption being against the consent of Kashi Bai, Plaintiff 1, it was not vali

dby virtue ofthe provisions of Section 7 of the Hindu Adoptions and Maintenance Act, 1956. Section 7 of the

Act provides that any male Hindu who is of sound mind and is not a minor has the capacity to

take a son or a daughter in adoption. It provides that if he has a wife living, he shall not adoptexcept with the consent of his wife. In the present case as seen from the evidence discussed by

the trial court it is abundantly clear that Plaintiff 1 Kashi Bai the first wife ofdeceased Lachiramhad not only declined to participate in the alleged adoption proceedings but also declined to give

consent for the said adoption and, therefore, the plea of alleged adoption advanced by thedefendants was clearly hit by the provisions of Section 7 and the adoption cannot be said to be a

valid adoption.(emphasis supplied)

22. In BrajendraSingh v.Stateof M.P. (supra), the Court considere

dthe scope of Sections 7and 8(c) of the 1956 Act in the backdrop of the claim made by the appellant that he was validly

adopted son of Mishri Bai, who was married to Padam Singh but was forced to live with herparents. In 1970, Mishri Bai claims to have adopted the appellant. After some time, she was

served with a notice under Section 10 of the M.P. Ceiling on Agricultural Holdings Act, 1960indicating that her holding of agricultural land was more than the prescribed limit. In her reply,

Mishri Bai claimed that she and her adopted son were entitled to retain 54 acres land. Thecompetent authority did not accept her claim. Thereupon, Mishri Bai filed suit fordeclaration

that the appellant is her adopted son. During the pendency of the suit, she executed a registeredWill bequeathing all her properties in favour of the appellant. The trial Court decreed the suit.

The first appellate Court dismissed the appeal preferred by the State of Madhya Pradesh. TheHigh Court allowed the second appeal and held that in the absence of the consent of Mishri Bai's

husband, adoption of the appellant cannot be treated as valid. This Court noticed that language ofSections 7 and 8 was different and observed: A married woman cannot adopt at all during the

subsistence of the marriage except when the husband has completely and finally renounced theworld or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be

of unsound mind. If the husband is not under such disqualification, the wife cannot adopt evenwith the consent of the husband whereas the husband can adopt with the consent of the wife.

This is clear from Section 7 of the Act. Proviso thereof makes it clear that a male Hindu cannotadopt except with the consent of the wife, unless the wife has completely and finally renounced

the world or has ceased to be a Hindu or has been declared by a court of competent jurisdictionto be of unsound mind. It is relevant to note that in the case of a male Hindu the consent of the

wife is necessary unless the other contingency exists. Though Section 8 is almost identical, theconsent of the husband is not provided for. The proviso to Section 7 imposes a restriction in the

right of male Hindu to take in adoption. In this respect the Act radically departs from the old lawwhere no such bar was laiddown to the exercise of the right of a male Hindu to adopt oneself,

unless he dispossesses the requisite capacity. As per the proviso to Section 7 the wife's consentmust be obtained prior to adoption and cannot be subsequent to the act of adoption. The proviso

lays down consent as a condition precedent to an adoption which is mandatory and adoption

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without wife's consent would be void. Both proviso to Sections 7 and 8(c) refer to certaincircumstances which have effect on the capacity to make an adoption. (emphasis supplied)

34. In view of the above discussion, we hold that the concurrent finding recorded by the trial

Court and the lower appellate Court, which was approved by the learned Single Judge of the

High Court that Gopalji had

ad

opted

Ghisalal with the consent of Dhapubai is perverse inasmuchas the same is based on unfounded assumptions and pure conjectures. We further hold thatDhapubai had succeeded in proving that the adoption of Ghisalal by Gopalji was not valid

because her consent had not been obtained as per the mandate of the proviso to Section 7 of the1956 Act. As a corollary, it is held that the suit filed by Ghisalal for grant of a decree that he is

entitled to one half share in the properties of Gopalji was not maintainable and the findingsrecorded by the trial Court, the lower appellate Court and/or the High Court on the validity of

Gift Deeds dated 29.11.1944 and 22.10.1966, Will dated 27.10.1975 executed by Gopalji infavour of Dhapubai and Sale Deeddated 19.1.1973 executed by her in favour of Sunderbai are

liable to be set aside.

35. In the result, Civil Appeal Nos.6375-6376 of 2002 are allowed. The ju

dgments an

ddecreespassed by the trial Court, the lower appellate Court and the High Court are set aside and the suit

filed by Ghisalal is dismissed. As a sequel to this, Civil Appeal Nos.6373-6374 of 2002 aredismissed. The parties are left to bear their own costs.

Consentof wife whennotnecessary.The consent of the wife will not be necessary if the wifewhose consent is sought has

(l) completely and finally renounced the world, or

(2) ceased to be a Hindu, or

(3) has been declared by a court of competent jurisdiction to be of an unsound mind.In

case a person is living with a woman as his wife and she is not legally wedded wife, her consentwould not be necessary for him to make a valid adoption. The expression wife in the present

context would mean only legally married wife. It is the consent of the legally married wife whichhas been made necessary for a valid adoption in the present context. A question may arise

whether the consent of wife living separately under a decree of judicial separation would berequired for a valid adoption ? The answer appears to be in the affirmative because the decree for

judicial separation does not put marriage to an end and the wife continues to be the spouse of thehusband. But in the case of a wife under a void marriage her consent is not necessary as she is

strictly speaking not a lawful wife and the husband is entitled to ignore such a marriage as wellas the wife of such a marriage. In the case of a voidable marriage under Section 12 of the Hindu

Marriage Act, the wife will be treated as wife so long as the marriage has not been avoided, andthe absence of her

consent with respect of adoption would invalidate the adoption. Where a decree of nullity underSection 12 has been passed or where a decree ofdivorce has been passed under Section 13 of the

Act, the consent of such wife would not be necessary to make a valid adoption.

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The consent of wife which is required under thissection for a valid adoption being made by the husband need not be expressed but can be implied

from the circumstances of any case. For instance, if it is found that in the ceremony of adoption,the wife has been associated with and she has not protested or abstained from participation, her

consent may be held established unless cogent and clinching proof is forthcoming to show that

the participation or conduct on the part of the wife was not voluntary but force

d. But if thehusband has more than one wife, this inference of consent by all the wives cannot be drawn

merely from participation by one of wife alone.

Whether the consent of all the wives necessary ?Explanation to Section 7 provides that if a

man has more than one wife living at the time of adoption the consent of all the wives must beobtained. But if any one of them is suffering from any of three disabilities (i.e., civil death,

apostasy or unsoundness) the consent of such wife who is under such disability may bedispensed with and the consent of all other wives must be taken.

Capacityof Femaletotakeinadoption.Under the old Hindu law, the power of female

Hindu to a

dopt a son was very much restricte

d. She coul

dnot a

dopt to herself an

dcoul

dnotadopt without the assent of her husband. She had no right herself but that she was deemed to act

merely as an agent, or representative of her husband or that she was supposed as an instrumentthrough whom he was supposed to act. A Hindu coulddirect his wife to adopt with the consent

of a specified person or coulddirect her not to adopt except with the consent of a specifiedperson. Where the adoption by the widow with the consent of a specified person was made a

condition precedent, an adoption without such consent of the specified person was invalid.A widows power to adopt continued till

her entire lifetime where

(i) her husband haddied without leaving any son, grandson or a great-grandson ;

(ii) in case her husband haddied leaving a son, and the son had also died leaving his mother as

only heir to him.

Under this Act, a widow gets a right to adopt a child even in the absence of any authority fromherdeceased husband. An unmarried woman has also an independent right to adopt a child.

Under the old Hindu law, no such right was given to an unmarried woman. Thus the Actauthorizes a maiden, a divorced woman or a widow to take a child in adoption. The original

Section 8 of the Act laiddown the conditions in which a Hindu female can adopt. It runs asfollows:

Any female Hindu

(a) who is of sound mind,

(b) who is not a minor, and

(c) who is not married, or if married,

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(i) whose marriage has been dissolved, or

(ii) whose husband is dead, or

(iii) has completely and finally renounced the world, or

(iv) has ceased to be a Hindu, or

(v) has been declared by a court of competent jurisdiction to be of unsound mind, has the

capacity to take a son ordaughter in adoption.It may be noted that in one respect womans right of adoption is a

limited one. In the case of a man, the right is subject to the vetoing power of the wife or wives asthe consent of wife or wives is necessary, but in the case of woman that right can be exercised

absolutely during the period of her maidenhood, divorce-hood, widowhood and conditionallyduring the continuance of marriage if her husband has renounced the world or has ceased to be a

Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.

Thusthe wife assumes independent power of adopting a child where the husband has

(a) completely and finally renounced the world, which means that he has become Sanyasi, or

(b) has become a convert by embracing other religion like Christianity and Islam, or

(c) has been declared to be of unsound mind by a court of competent jurisdiction. It may be

noted that such a declaration must actually be obtained ; merely on the basis of unsoundness ofmind of the husband, the wife does not acquire the competence to adopt a child independently.

Minorityand unsoundness.A woman who is of sound

mind

and

is not minor can take childin adoption. These two conditions are also present in case of adoption by male. If she is a minor

(below the age of 18 years), or of unsound mind she is incapable of taking a child in adoption.

According to Section 8 of the Hindu Adoption and Maintenance Act as substituted by thePersonal Laws (Amendment) Act, 2010, any female Hindu who is of sound mind and is not a

minor has the capacity to take a son ordaughter in adoption: Provided that if she has a husbandliving, she cannot adopt a son ordaughter except with the consent of her husband unless the

husband has completely and finally renounced the world or has ceased to be a Hindu or has beendeclared by a court of competent jurisdiction to be of unsound mind.

Maidenanddivorced.An unmarried woman and a woman who has been divorced, i.e. whose

marriage has beend

issolved

und

er Section 13 of the Hind

u Marriage Act, can take a child

inadoption.28 A woman whose marriage has been dissolved under Section 13 of the HinduMarriage Act, i, for all intents and purposes of this Act, a spinster. Such a woman, therefore, has

all the rights of an unmarried woman for the purposes of making an adoption. Previous to thisAct a spinster had no right to take a son in adoption.

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Adoption bythe widow.Section 8 recognizes the right of a Hindu widow to adopt a son ordaughter to herself. The effect of adoption by a widow of a son ordaughter will be to clothe the

adopted son ordaughter with all the rights of a natural born son ordaughter in the adoptivefamily and to create all the ties of the child in the family (Section 12). The result is that for all

purposes (subject to rules laiddown in Section 12) the adoptee in effect becomes the son ordaughter not only of the wi

dow but of her

decease

dhusban

das well. When there are two co-widows, one widow alone can adopt a son ordaughter without the consent of the other co-

widow, for or the estate of the late husband.3

It may be noted here that the right of a female Hindu to adopt a child is larger than that of thepower of a male Hindu. A male Hindu can adopt only for once whereas a female Hindu can

validly adopt several times. The present Act, besides increasing the powers of adoption of afemale Hindu contemplates such conditions in which female Hindu becomes eligible to make

adoptions of several sons.

Restrictive Conditions of Adoptions :- Section 11, Hindu Adoptions and Maintenance Act.Justbecause a person has capacity to adopt, it is not necessary that he has also the right to make an

adoption; certain restrictive con

ditions exist. These con

ditions are(a)Adoption ofson.Adopter must not have a Hindu son, sons son or sons sons son. If he has

any one of these, he cannot make an adoption. Son or sons son or sons sons son may be bylegitimate birth or by adoption. If the son, sons son or sons sons son has ceased to be a Hindu,

an adoption of a son will be valid.(b)Adoption of daughter.Ifa Hindu wants to adopt a daughter, it is necessary that he must not

have a Hindu daughter, or a sons daughter. Existence of an adopteddaughter or sons adopteddaughter will also bar the adoption of a daughter. But ifdaughter or sons daughter has ceased to

be a Hindu, adoption of a daughter can be validly made.(c) Two persons cannot adopt the same child.Twopersons cams adopt the same child. Two

persons do not mean husband and wife, as such a case, both are adoptive parents of the child.Here, by two persa we mean other than husband and wife, such as two sisters, two brothers two

friends. This also means that the child cannot continue to be a son m daughter, as the case maybe, in his natural family as well as in the adoptive family. A child can have only one mother or

one father whether natural or adoptive.(d)Age difference between the parent and child.Ifa Hindu wants to adopt a child of the

opposite sex, he or she must be older to the child by least 21 years. Violation of this requirementrenders the adoption void: . This is meant to prevent people from abusing the adopted child.

WHO MAY GIVE IN ADOPTION :- S. 9, Hindu Adoptions & Maintenance Act.Under the

old Hindu , law, only father or mother could give the child in adoption. According toYajnavalkya, A dattaka son is one whom his mother or father gives. Before. 1956, the fathers

power to give his son in adoption was absolute and he. could give the child in adoption even ifhis wife (childs mother) dissented from it. After the father, the mother could give the child in

adoption. No one else could give the child in adoption, not even the guardian. Under the HinduAdoptions and Maintenance Act, 1956, father, mother and the guardian have the power to give

the child in adoption.

The father.The father cannot now give the child in adoption without the consent of the mother

of the child. The consent of the mother of the child may be dispensed with in any one of the

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following three cases : (a) If she has finally and completely renounced theworld, (b) if she has ceased

to be a Hindu, or(c) if she has been judicially declared to be of unsound mind.

In no other case, even if the marriage has beend

issolved, consent of themother can be dispensed with. In the absence of mothers consent, adoption is void. The

expression father here does not include an adoptive father, putative father or stepfather. The

putative father of an illegitimate son is not included even if subsequent to the birth of the child,he had married the mother of the child, because Hindu law does not recognize legitimating. In

the Bombay school, a married person may be taken in adoption. The question that arises is : Cana father exercise the power of giving in adoption his son born to him before adoption ? A full

Bench of the Bombay High Court held that he can do so, as he continues to be the father of thechild. On the other hand, a full Bench of the Nagpur High Court took the view that he cannot do

so, as the dattaka adoption implies a complete severance of the adoptee from his natural familyand therefore his right to give his son in adoption is lost after he himself goes in adoption in

another family. The Hindu A

doptions an

dMaintenance Act is silent on the relationship of anadopted person with his children born to him prior to adoption. Therefore, there is a possibility of

the same conflict continuing. It is submitted that since adoption under the Act also meanscomplete severance of ties with the natural family, the Nagpur view is sound.

The mother.The mother of an illegitimate child has power to give the child in adoption and no

question arises of putative fathers consent. But the mother of a legitimate child has during thelife-time of the father, no power to give the child in adoption even with the consent of the father.

Under the Act the mother of a legitimate child can give the child in adoption during the life-timeof the father only in the following cases :

(a) if the father has ceased to be a Hindu,

(b) if he has finally and completely renounced the world, or

(c) if he has been judicially declared to be of unsound mind.

In these cases dissent of the father is of no

consequence. But a remarried woman has no right to give away in adoption her son born to her

from herdeceased husband, since S. 3, Hindu Widow Remarriage Act, 1956 divest her of herright of guardianship over children born to her from herdeceased husband.4

The mother has power to give her legitimate child

in ad

option after thed

eath of the father. Evenif a father, before his death expressed himself categorically that his child should not be given in

adoption, the mother can, after his death, validly give the child in adoption.

The expression mother does not include adoptive mother or stepmother and therefore a

stepmother or adoptive mother has no capacity to give the child in adoption. But it seems that amother on conversion to another religion will not lose her right to give the child in adoption,

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since S. 9(4) does not empower a guardian to give the child in adoption in case the parent hasceased to be a Hindu. Mother also does not lose her right of giving the child in adoption- on

divorce.

The Guardian.The term guardian includes both de jure andde facto guardians. Thus, a

manager, secretary or any person in charge of an orphanage or a person who has brought up thechild, or under whose care the child is, can give the child in adoption. A guardian can exercisethe power only in the following cases :

(a) If both the parents are dead,

(b) if parents have finally and completely renounced the world,

(c) parents have been judicially declared to be of unsound mind,

(d) if parents have abandoned the child, or

(e) if the parentage of the child is not known, just as in the case of a foundling or a refugee-child.

Prior permission of court is necessary.When the guardian exercises power of giving the child

in adoption, prior permission of the court m necessary. No court will accord permission to aproposed adoption unless it comes to the finding that the adoption will be for the welfare of the

child. If the child is capable of exprssing. his wishes, his wishes will be taken into account,though court. may pass an adoption order contrary to the wishes i the child as the welfare of the

child is of paramount consideration. In- considering what is for the welfare of the child, the courtwill consider the. physical and moral well-being of the child and the character and qualifications

of the proposed adopter. The financial position and social status of the proposed adopter may

also be taken into consideration. In short, the court will weigh the pros an

dcons of the twoplaces : the place where the child is and the place where the child will be taken to. In the

situation in which the child is proposed to be taken is less advantageous to the child, the court

will ordinarily refuse to pass an adoption order.

The second matter that the court has to consider before passing an adoption order is to see

whether any person has not received or agreed to receive, and given or agreed to give to the

applicant any payment or reward in consideration of the adoption. If any thing in cash or kind,has been given or taken or agreed to be given or taken, the court may refuse to accord permission

to the proposed adoption. It is submitted that if an adoption is made in contravention of thiscondition (it may not be brought to the notice of the court), the adoption will stand valid as this

cannot be taken as an essential cond

ition of ad

option within the meaning of Section 6(iv). Thecourt has power to allow some payment to be made to the guardian. For instance, cost of the

performance of ceremonies of adoption will be a valid charge. The court may also allow theactual cost of the upkeep of the child that guardian has incurred from his own pocket. The court,

it seems, has also power to attach conditions to the adoption order. The court means the citycivil court or a district court within the local limits on whose jurisdiction the child to be adoptedordinarily resides.

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Permission of the court in othercases.It has been seen earlier that if the father or mother givesthe child in adoption, no prior permission of the court or any adoption order is necessary. This is

the continuation of the old notions where adoption Was considered to be essentially a private act.It is self evident that no person can look after the welfare of the children in a better way than the

parents. But divorce cases show that it is not always so. The very fact that a parent wants to give

away the child

in adoption is in

dicative of a

different attitu

de. May be, in some cases, a parentwants to give away his child in adoption, because he feels that the child will have better

upbringing. But it may be otherwise too. For instance, a young widow, or a young mother of an

illegitimate child, feels that in her settlement in life the child is a hindrance, and, therefore, shemay give away the child to the first person who is willing to have it, without considering the

suitability or otherwise of that person or the welfare of the child.

Who may be adopted .Section 10 of the Act provides the qualifications necessary to make the

subject (child) of adoption fit for being taken in adoption. The Act has taken a practical view of

adoption and consequently the elaborate rules regarding the persons to be adopted have beendropped as will be evident from Section 10 of the Act which reads as follows

WHO MAY BE TAKEN IN ADOPTION :-Section 10, Hindu Adoptions and Maintenance

Act Under the modern law, requirements are as under:

1. Two persons cannot adopt the same ehild.This requirement was mandatory under theold law and this is so under the Act. (This has been discussed earlier).

2. Child must be Hindu.Itis necessary that the child to be adopted must be a Hindu.Therefore, adoption of a Muslim child by a Hindu is not reorganized under this Act.2

Whether he is related to the adopter by blood or marriage or is a total stranger isimmaterial. It is also immaterial as to which caste he belongs.

3. Nearest sapinda and identity ofcaste.According to theDattaka Chandrika and theDhattaka Mimansa, only the nearestsapinda could be taken in adoption. But this was

considered merely a recommendatory rule and adoption of remoter relation was validunder the old law. So it is under the modern law. Under the old law, the adopted son must

be of the same caste as of his adoptive father. A member of one religious sect could alsonot adopt a son from another sect. All these prohibitions are no longer valid. Under the

Act, the only requirement is that the child must be a Hindu.

4. Orphan, foundling and abandonedchild.Under the old law, an orphan, foundling or

abandoned child could not be adopted. This state of . law was obviously unsatisfactory

in the modern context. The fact of the matter is that it is the orphan whose need ofadoption is the greatest. The Hindu Adoptions and Maintenatice Act, 1956 makes aprovision for the adoption of orphans. The Act goes much beyond this. If the parents

have renounced the world or have been judicially declared to be of unsound mind, thechild can be given in adoption by the guardian. Adoption of an 4bandoned child can be

made. A foundling can also be adopted. A foundling a child who has been found bysomeone and whose parents are not known. the parents are known, such a child is known

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as an abandoned child. Thus, in the modem Hindu law, the institution of adoption can beutilized to solve the social problem of orphans, abandoned and refugee children.

5. The childwhose mother could not have been married by adopter.Under the old Hindulaw, it was an established rule among the first three classes that no one could be adopted

whose mother in her maiden state the adopter could not have legally married. Thus, onecould not adopt his own daughters, sisters, mothers sisters or fathers sisters son.

Exception by custom was recognized. Under the modern Hindu law, no such restrictionexists, and howsoever related or unrelated the child may be, he can be taken in adoption.

6. The age of the child.Before 1956, it was a settled law that in all schools of Hindu law,except Bombay, the adoption of a son among the twice born classes was valid if made

before the performance ofupanayana ceremony and, among the Sudras if made beforemarriage. In Bombay, adoption of a child of any age was valid. Under Punjab customary

law also, there was no restriction as to age. The Hindu Adoptions and Maintenance Actnow lays down that the child must not have completed the age of fifteen years. Thus, a

child can be adopted upto the age of 14 years and 364 days. A custom to the contrary isrecognized. This means that in Bombay and Punjab and elsewhere, where such a custom

prevails, adoption of a child of the age of 15 or more will be valid. But custom must bespecifically pleaded and proved. Therefore, adoption of a daughter prior to the Act was

held invalid, especially also when no such custom was also alleged.

7. Marriedchild.Before 1956, the adoption of a married child among all classes was

invalid throughout India except in Bombay and among Jats. In Bombay, adoption of amarried person, or a married person with children was valid. Section 1O(iii) prohibits

adoption of married child, but recognises a custom to the contrary. Adoption of marriedperson of any age is permitted among the Jats in Punjab. Where adoption of a married

person is valid, any child born to him after adoption will be the child of the adoptive

family.

8. Lunatic child.A lunatic child may be validly adopted.

9. Daughter.Under the old Hindu law, a female child could not be adopted as adoption of

daughterdid not confer any spiritual benefit on the adopter. Prior to 1956, adoption ofdaughter was recognised by custom only. However, custom has to be averred and proved

for overage adoption otherwise such an adoption shall be invalid. For instance, inmatrilineal families in Kerala or among the devadasis, adoption ofdaughter was

recognised by custom. Under the modern Hindu law, this bar has been lifted and a Hinduis free to adopt a daughter, though he cannot adopt more than one daughter.

10.Illegitimate child.Underthe old Hindu law, adoption of an illegitimate child was notpermitted as such an adoption did not confer any spiritual benefit on his adoptive father.

Under the modern Hindu law, adoption of an illegitimate child is valid.

11.Two Sons and two daughters.Underthe Act, no person can adopt more than one son or

more than one daughter. A person may adopt one son and one daughter.

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CEREMONIES OF ADOPTION :-S. 1l(vi), Hindu Adoptions and Maintenance Act.

The present Act requires only the ceremony of actual giving and taking of child in adoption,

as will be clear from Section 11 (iv) of the Act, which lays down, The child to be adoptedmust be actually given and taken in adoption by the parents or guardians or under their

authority with intent to transfer the child from the family of its birth, or in the case of an

abandone

dchil

dor a chil

dwhose parentage is not known, from the place or family where ithas been brought up to the family of its adoption: Provided that the performance ofDatta

Homam shall not be essential to the validity of an adoption.

Under the present Act the giving and takingare the operative part of the ceremony, Law does not prescribe any particular form. For a

valid adoption all that the law requires is that the natural parents only shall be asked byadoptive parents to give their child in adoption and that the child shall be handed over and

taken over with intent to transfer the child from the family of his birth to the family of itsadoption. The formality of actual giving and taking of the child in adoption is so essential

that if it could not be proved, the adoption must be invalid.The right to give a child in adoption cannot be delegated to any

person but the natural parents or guardian may authorize another person to perform thephysical act of giving a child in adoption to a named person who can delegate someone to

accept the child in adoption on his or her behalf. Where a child was given in adoptionwillingly by natural parents and was taken in adoption by adoptive mother through her

attorney, the Punjab & Haryana High Court held that it was a valid adoption.

Ceremonyofgivingandtakingis essential.In Lakshman Singh Kothari v. Sri,nati RupKuwar, AIR 1961 SC 1378the Supreme Court held that under the Hindu Law, whether

among the regenerate caste or among Shudras, there cannot be a valid adoption unless the

adoptive child is transferred from one family to another and that can be done only by theceremony of giving and taking. The object of the corporal giving and receiving in adoption is

to secure due publicity. To achieve this object it is essential to have a formal ceremony. Noparticular form is prescribed for the ceremony, but the law requires that the natural parent

shall hand over the adoptive boy and the adoptive parent shall receive him. The nature ofceremony may vary depending upon the circumstance of each case. But a ceremony has got

to be a part of adoption of giving and taking. Delegation of power to give and take may bepermitted when it becomes impossible for a natural father to handover the adoptive child

physically, to an adoptive father or mother.

Devi Prasadv. Tribeni Debi, AIR 1970 sc1286. :- Under Hindu Law, the giving and receiving

of a child are absolutely necessary to the validity of an adoption ; but Hindu Law does notrequire it to be of any particular form so far as giving and acceptance are concerned. For a valid

adoption all that the law requires is that the natural father shall be asked by the adoptive parent togive his child in adoption and that the child shall be handed over and taken for this purpose.

According to Section 11 (iv), the following requisites are necessary to constitute avalid adoption in the sense of effective transfer of the child from one family to another:

(1) There must be actual giving of the child in adoption by its natural parents, or in their absenceby the guardian.

(2) There must be actual taking of the child by the adopter.(3) There must be the intention to transfer the child from the family of its birth to the family of

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its adoption.(4) If the giving and taking is not by the parent or the guardian concerned, it must be under his

authority given to somebody else who actually gives or takes the child in adoption.Where giving and taking of boy in adoption is doubted, and the recital about adoption is

contained in a deed, such a deed cannot be presumed to be acknowledgement of adoption under

Section 16 of the Act. In such a case adoption will fail.

Datta Homam.DattaHomam is the sacrifice of the burning of clarified butter, which is offered

as a sacrifice to fire by way of religious propitiation or oblation. We also find that in thedeviation of an adopted son as given in the Institutes ofManu, hardly any stress is laid on the

performance ofDatta Homam. Datta Homam was not essential in the case of an adoption in thetwice born classes when the adopted son belongs to the samegotra as the adoptive father. The

Judicial Committee did not express any definite opinion in the matter.Dana Homam could beperformed at any time after the physical act of giving and taking. The High Court of Manipur has

taken the view thatDana Homam is essential ceremony under Hindu Law of adoption. Evidenceofannapresana, ear-boring andupanyana etc. cannot validate adoption, in absence ofDatta

Homam. Datta Homam is, under the present Act, not essential for an a

doption ma

de by any classof Hindus, Jams, Buddhists and Sikhs.

There is a presumption thatthe ceremony of giving and taking must have taken place. It is for the plaintiff to prove that

ceremony of giving and taking has not taken place. But evidences against the fact of actualgiving and taking ceremony must be proved beyonddoubt.

EFFECT OF ADOPTION :-

Section 12Hindu Adoptions and Maintenance Act.Thesection runs thus : An adoptedchild shall be deemed to be the child of his or adoptive father or mother for all purposes with

effect from thedate of IL a

doption an

dfrom such

date all the ties of the chil

din the family of hisher birth shall be deemed to be severed and replaced by those created 1 the adoption in the

adoptive family.

Inthe NaturalFamily.Under Hindu law, both old and new, adoption of a child means that

the child is totally uprooted from the natur. family and transplanted in the new family.

Relationship with the members of the naturalfamily.For secular, religious and civil purposes,

the adopted child ceases to be the child of the natural family. His father and mother cease to behis parents and ali relations on the fathers side and mothers side cease to be his relations. After

adoption he is not entitled to any share in the property of his natural parents. Only tie that heretains with his natural family is that he cannot marry any person in his natural family whom he

could not have married before his adoption.

The natural parents right of guardianship ceases with effect from the date of adoption, whatever

be the age of the child. Even if the child is below 5 years, its natural mother cannot claim itscustody (which she would be entitled to otherwise under Proviso to S. 6(a), Hindu Minority and

Guardianship Act, 1956). When adoption of a married person is permitted, that person cannot

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give in adoption his child born to him prior to adoption, though a contrary opinion was expressedin a case under the old law.

Divesting ofproperty.Priviso (b) to Section 12 of the Act provides that any property which

vested

in the adopte

dchil

dbefore the a

doption shall continue to vest in such person subject tothe obligations, if any, attaching to the ownership of such property, including the obligation to

maintain relatives in the family of his or her birth. Thus, any property that the child inherited

from any relation before adoption will continue to be his property even after adoption. Forinstance, two brothers X and Y inherited property from their mother. Subsequently, the father

gave away X in adoption. X will continue to be the owner of the property inherited by him fromhis mother before adoption. Or, take another example, the maternal grandfather of X died,

leaving behind a widoweddaughter-in-law P who has a right of maintenance against thegrandfather. X inherited the property. the time of adoption. The estrangement between the

spouses was due fr second wife taken by the husband. Through the second wife the husbaa threechildren. The first wife though claimed maintenance for herself claimed maintenance for the

adopte

dchil

d. Un

der theadoption was held not to be proved. Where the child all along lived with natural parents, name of

natu parents was in the school, it was held that the adoption deed fraudulent. Subsequently, X isgiven away in adoption. X will retain the property inherited by him from his maternal

grandfather, though he will be required to provide maintenance to P, so long as she is entitled toit.

In the Adoptive Family.The adopted child is deemed to be the child of the adopter for all

purposes. His position for all intents and purposes is that of natural born son : he has the samerights, privileges and the same obligations in the adoptive family.

Relationshipw

ith the members of the adoptive family.T

he adoption in Hin

du law meanscomplete transplantation of the child in the adoptive family. This means that he is not merely the

child of the adoptive parents but he is also related to all relations on the mothers side as well asthe fathers side as if he is the natural born child of the family. Thus, fathers and mothers

parents are his grand-parents. His adoptive parents daughter is his sister and so on.

Since all ties come into existence in adoptive family, the adopted child cannot marry any person

(whether by natural birth or adoption in the adoptive family), whom he could not have married

had he or she been a natural child of the family.

Guardianship, inheritance and maintenance .The adoptive parents an the natural guardians of

their adopted minor child, first the father, then mother. If the adopted child is less than five

years, then the adoptive mother will have preferential claim to the custody of the child. Theposition of an adopted child in respect of inheritance an maintenance is the same as that of thenatural born child. If there is an - adopted child and a natural child, both will inherit equally. The

adopted child has the right of collateral succession both on his adoptive mothers side andadoptive fathers side. In short, he will inherit in the adoptive family a if he is born in the

adoptive family. Conversely, all persons are entitled to succeed to him, if they would have

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succeeded to him had he been a natural child. He can claim maintenance against his adoptiveparents or against any person, against whom as a natural child could have claimed maintenance.

Conversely, he is liable to maintain all those persons whom a natural child has an obligation tomaintain. The adopted childs right of maintenance ceases on his attaining majority.

An adopted son can also exercise the right of preemption. Under the Punjab Pre-emption Act

father and

son includ

e ad

opted

son and

adoptive father.

Adoptive parents right of disposing the property.Section 13 of the Act lays down: Subject to

any agreement to the contrary, an adoption does not deprive the adoptive father or mother of thepower to dispose of his or her property by transferinter vivos or by will.

Chiranjilal Srilal Goenka v.Jasjit Singh, AIR 2001 SC 266. :- an adoptive parent is in no way

restrained in the disposal of his/her properties by reason of adoption. Adoptive parents right ofdisposing of his property is subject to any agreement to the contrary that might have been entered

into between the adoptive parent and the natural parent on behalf of the child. The adopted childcannot demand any property, or its enjoyment during the life-time of his father even if there is an

agreement that the adoptive father will not

deprive him from inheritance, as question ofinheritance will arise only on the death of the father; till then father has full right to hold and

enjoy the properties. Under the Act, agreements restricting the power of alienation of theadoptive parent are valid.

Divesting of property .Section 12(c) specifically lays down that the adopted child shall notdivest any person of any estate which vested in him or her before the adoption. The old Hindu

law ofdivesting of property on adoption was very complicated and a source of constantlitigation. Under the modern Hindu law, this source of litigation has been done away with by

laying down that the adopted child cannot divest any person of the properties vested in him orher before adoption. For instance, A died leaving his widow B and two daughters, X and Y. On

Asdeath B, X an

dY inherite

dproperties of A, each taking share. This one-thir

dshare vestsin each of them immediately on the death of A.

In Sawan Ram v.Kalawati,AIR 1967 SC1961 A, a Hindu, died in 1948 leaving behind his

widow W. W took her husbands properties as a limited owner. In 1954, W made a gift of somelands to her grand-niece, B. X, a collateral of A and presumptive reversioner, sued for a

declaration that the gift to B was not binding on him. The trial court gave the declaration prayedfor. B appealed against it. Pending Bs appeal in 1959, W adopted Bs son P. Later in the same

year W died. X sued for possession of lands. Since these lands were not in possession of W in1956 (S. 14, Hindu Succession Act, 1956, converts only that widows estate into her absolute

property over which she had possession when the Act came into force), she did not become fullowner of these and reversioners right to challenge alienations continued (see Chapter XIV), P

could succeed to these properties only as heir to Ws deceased husband. And the Supreme Courtheld that a son adopted by a widow is also an adopted son of herdeceased husband (for

reasoning of the court, see subsequent pages). Since no property vests in a reversionary, it cannotbe said that the Supreme Courts decision divested the property vested in X. But it did resurrect

the doctrine of relating back and thus enabled the adopted son of a widow to inherit the propertyof herdeceased husband.

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Doctrineof Relation Back.Accordingto this doctrine a son adopted by the widow under the

authority of her husband was deemed to have been adopted on the day the husbanddied. He wasput in the position of posthumous son and all his relations in the adoptive family related back to

the date of the death of his adoptive father by a legal fiction. The theory on which this doctrine is

based

is that there should

be no hiatus in the continuity of the line of ad

optive father. Thedoctrine, however, has application only when the question relates to succession of the property ofthe adoptive father.

Exception to the Rule.This Rule had two exceptions:

(I) That any lawful alienation effected by a female heir since the death of the adoptive father andbefore the date of adoption was binding on the adopted son.

(2) That if the property by inheritance went to a collateral, the adoption could not divest theproperty which has vested in the heir of the collateral.

In SripadConjoin v.Datta Rani Kashi Nath,AIR 1974 SC878 Supreme Court has explained themeaning of the doctrine of relation back in the following words, when a widow adopts a son to

her husband,doctrine makes sonship retrospective from the moment of the

death of the latehusband. The adopted son is deemed to have born on the date of the death of the adoptive

father. The propositions that emerge are that a widows adoption cannot be stultified by ananterior partition of the joint family and the adopted son can claim a share as if he were begotten

and was alive when the adoptive father breathed last..

The Supreme Court further approved the principles of law relating to consequences of an

adoption under the old law inKrishnamurthi v.Dhruvaraj AIR 1962 SC59 The law wassummarized as follows

(i) An adopted son is held entitled to take, in defence of the rights acquired prior to his adoption,on the ground that in the eye of the law his adoption relates back by a legal fiction to the death of

his adoptive father, he being put in position of a posthumous child.

(ii) As a preferential heir an adopted son divests :

(a) his mother of the estate of his adoptive father;

(b) his adoptive mother of the estate she gets as an heir of her son who died after her husband.

(iii) A coparcenary continues to subsist so long as there is in existence a widow of a coparcener

capable of bringing a son into existence by adoption ;the rights of the adopted son are the sameas if he had been in existence at the time when his adoptive motherdied and that his title as

coparcener prevails as against the title of any person claiming as heir to the last coparcener.

(iv) The principle of relation back applies only when the claim made by the adopted son relates

to the estate of his adoptive father. It is the interest of the adoptive father which the adopted son

is declared entitled to take as on the date of his death. This principle of relation back cannot beapplied when the claim made by the adopted son related not to estate of his adoptive father but to

that of a collateral. With reference to the claim of a collateral, the governing principle is thatinheritance can never be held in abeyance and that once it devolves on a person who is the

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nearest heir under the law, itis not liable to be divested. When succession to the properties of aperson other than an adoptive father is involved, the principle applicable is not the rule of

relation back but the rule that inheritance once vested could not be divested.

(v) The estate continues to be the estate of the adoptive father in whatsoevers hands it may be,

that is, whether in the hand

s of one who is the absolute owner or one who is a limited

owner.Anyone who inherits the estate of the adoptive father is his heir irrespective of the inheritancehaving passed through a number of persons, each being the heir of the previous owner.