FAMILY LAWS & ADOPTION

Ms. Pinky Anand, Advocate

The origin of the custom of adoption is lost in antiquity. In Hindu law, five kinds of adopted sons were recognised. These were the Krita (Son Bought), Apaviddha (the deserted son), Svayamdatta (the son self-given), Kritrima (the son made), and the Dattaka (the adopted son who is seen as the reflection of the natural son). Out of the five kinds of adopted sons, only two survive today, namely, the Dattaka form prevalent throughout India and the Kritrima form, which is confined to Mithila and adjoining districts.

The object of an adoption is mixed, being religious and secular. According to Mayne, the recognition of the institution of adoption in early times had been more due to secular reasons than to any religious necessity, and the religious motive was only secondary. As time moved on, the primary object of adoption was now the gratification of the ancestors by annual offerings and, therefore, it was considered necessary that the offerer should be as much as possible a reflection of a real descendant and had to look as much like a real son as possible and certainly not be one who would never have been a son.

Adoption post - 1956

The preamble of the Hindu Adoptions and Maintenance Act, 1956, states that the Act codifies as well as amends the old Hindu law of adoption and maintenance.

As far as adoption is concerned, in Vijayalakshamma v. B.T. Shankar,1 the Supreme Court has held that the objective of the Act was not only to amend, but also to codify the law regarding adoption and maintenance and also to give overriding effect to provisions of the Act over any text, rule or interpretation of Hindu law, custom or usage inconsistent with it. The growth of the law and custom of adoption was mainly to be found in the ancient Hindu belief that a son was necessary for the spiritual salvation of the father, and of the ancestors. However, under the Act this seems to have been overtaken by a more secular approach. The Act contemplates and provides that an adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of adoption and from such date, and that all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by adoption in the adoptive family except for the purposes of marriage.

Requisites of a Valid Adoption

The requirements of a valid adoption are:

1. The person adopting must have the right to take and be lawfully capable of taking a son or daughter in adoption (Ss. 7,8). A Hindu male is deemed to have the right to take a child in adoption, subject to the conditions that he should not be a minor and should be sane.

2. The persons giving in adoption must be lawfully capable of doing so (S.9). This simply means that the person giving the child away in adoption must have the right to give away the child.

3. The person adopted must be lawfully capable of being taken in adoption (S. 10). Though married persons are not capable of being taken in adoption, such an adoption would be valid if permitted by custom.

4. The conditions relating to adoption, including actual giving and taking of the child with the intention of transferring the child from the family of its birth must be complied with (S. 11). Mere consent, or mere execution of adoption deed, does not constitute a valid adoption if it is not accompanied by actual physical delivery of the child.

Finality of Adoption and Cancellation of Adoption

As regards cancellation, the Act says that no valid adoption can be cancelled by the adoptive father or mother or any other person, not even by the adopted child. However, this does not mean that an adoption once shown through an adoption deed, for instance, would be final. When there is a registered document placing on record the factum of adoption, this only raises a presumption that the adoption is valid and genuine. The onus of proving the invalidity of an adoption in any such case is on the one who is challenging the adoption (S. 22). However, the Supreme Court has held that it is a rebuttable presumption.

It has been held in the case of Jai Singh v. Shakuntala,2 that the conduct of a person seeking benefit on basis of the adoption deed can be ascertained from the appreciation of evidence taken into account. In case of non-production of adoption deed, oral evidence may be considered by the court to decide the factum of adoption.

Status of Adopted Children as Coparcenor

The adopted son becomes a coparcenor. The only limitation regarding the rights of the adopted son is that he cannot divest any other person of the share of estate vested in that person as clearly laid down by the proviso to S. 12 (c). In the States of Andhra Pradesh, Karnataka, Tamil Nadu and Maharashtra, daughters have been made coparcenors in the joint family by amendment to the Hindu Succession Act, 1956.

Adoption by widow

When a widow adopts a son, the adopted son severs his ties with his natural family and, for all purposes (apart from purpose of marriage with his natural relations due to consanguinity), becomes a part of the adoptive family. There is no need for consent from sapindas for the widow to be able to adopt a child.

Adoption by married woman

The Hindu wife does not have an independent right of adoption. She has no right to adopt during her husband’s lifetime even with his consent. She can do so only if her husband is dead, or her marriage has been dissolved or he has completely and finally renounced the world or he has ceased to be a Hindu or has been adjudged as a person of unsound mind.

The Juvenile Justice Act

The Juvenile Justice Act is not a stand-alone law on adoption, but brings in adoption as one of the mechanisms by which abandoned or abused children could be rehabilitated. The focus in this Act, as regards adoption, is on providing a rehibilitative mechanism for children. This Act has sought to lay down a procedure whereby children can be given up in adoption. It envisages the setting up of Juvenile Justice Boards (district-level committees under a District Magistrate with special experience in child welfare) to give children in adoption according to guidelines laid down by a State government. According to this Act, a ‘child’ is a person who has not completed 18 years of age, which is an improvement on the Hindu Adoptions and Maintenance Act, in which a ‘child’ is a person who has completed 15 years.

Inter-Country adoption

The rationale for inter-country adoption is simple–“Every child deserves a home of his own.”

If it is in the child’s interest that it has to be taken out of the country, then so be it. In India, we have no legislation that deals with inter - country adoption. This shortcoming was noted by the Supreme Court in the case of Laxmikant Pandey v. Union of India3, where the Court laid down few principles governing the rules for Inter-Country adoption.

“In the first place, every application from a foreigner desiring to adopt a child must be sponsored by social or child welfare agency recognised or licensed by the government of the country in which the foreigner is a resident.... if a child is to be given in inter-country adoption, it would be desirable that it is given in such adoption before it completes the age of 3 years.”

The Court further noted that recourse must be taken to the Guardians and Wards Act, 1890, even if the child concerned is Hindu by a birth. The interpretation of the term ‘custody’ was enlarged to facilitate adoptions. It was the Supreme Court and not the legislature that was the first to lay down the guidelines in this area. It was only later, that the Ministry of Welfare, Government of India also released guidelines regarding “Adoption for Indian Children”. However, as the Supreme Court decided in the case of Anokha v. State of Rajasthan4, that these guidelines do not necessarily apply when the adoption involves a child who is living with his biological parent(s).

“Adoption comes from the heart, but the adoption process comes from the Law. You should follow your heart, but be sure you also follow the law”. Irina O’Rear, Member of International Bar Association St. Petersburg, Russia. This is the essence of the law of adoption. If a person wishes to adopt a child, it is a laudable intention, but one which could potentially adversely effect or even ruin a child’s life. That is why the process of adoption is regulated by the State. As the Supreme Court has observed in Githa Hariharan v. R.B.I.,5 Hindu law has shown no signs of decrepitude and it has its values and importance even today. As such, the Hindu law of adoption which was always meant to facilitate the process of adoption and protect the rights of both the adopter and the adopted, has emerged as a model law in this area.

Despite progressive statutory and judge made law, the figures of destitute and orphaned children are appalling. Reported figures show the following:-

Number of destitute children in India: 44 million

Number of orphans in India: 12.44 million

Number of official adoptions in India: 5000

Number of NGOs working on the issue of Adoption: around 300

Year                                   Inter-country adoptions6

2000                                               1364

2001                                               1298

2002                                               1066

2003                                               1024

The dismally low reported figures of adoption show that further changes need to be made to facilitate adoption. Both social values and laws need rethinking.

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1.   (2001) 4 SCC 558: AIR 2001 SC 1424

2.   (2002) 3 SCC 634: AIR 2002 SC 1428: (2002) 3 JT 52

3.   (1991) 4 SCC 33

4.   AIR 2004 SC 2820: (2004) 1 SCC 382

5.   (1999) 2 SCC 228

6.   Source: www.cara.nic.in