Updated: Aug 21, 2020
Meaning and Object:
i) Son meaning 'Putra' is one who saves the father from the hell called 'Puth'. Hence, in order to perform the obsequies of the parents, a son was essential. (Aputrasya Gatirnasti). In the absence of this aurasa (natural born) son, an adopted son was taken to perpetuate the lineage and to perform the obsequies. It was felt that such a person must be Saunaka (reflection of a son). Two forms of adoption became recognised 'dattaka form' .and 'kritrjma' form. The ancient commentaries available are Nanda pandita's Dattaka Mimamsa (Bengal) and Kuberas Dattaka Chandrika (South India). Adoption is an invention of the Hindus. The legend has instances of "Sunashepa" adopted by Harischandra ; Vedic story tells how Rishi Atri gave his only son in adoption to Aurasa.
ii) Object : It is both religious and secular. This is clear from Amarendra Mansingh V. Sanatan Singh where the Privy Council held that adoption was more religious and that the secular aspect was secondary. The other cases are: Balagangadhar Tilak's case,Hem Singh V. Harnam Singh (Supreme Court).
Ch. 3.2. Changes in Adoption Law :
Many changes were introduced by the Hindu Adoptions and Maintenance Act 1956. Briefly they may be stated as follows :
i) The religious or spiritual aspect of adoption is relegated to the background. Adoption is more secular according to the Act.
ii) A Hindu Male may adopt a boy or girl. A Hindu Female may adopt a boy or girl. Further a Hindu Female may adopt in her own rights. As regards the adoption of daughters, the Act has followed Nandapandita's commentary in Dattaka Mimamsa, thatputra includes daughter, giving independent capacity for a female to adopt.
iii) The Act has deviated from Vasista's text that a wife may adopt only with the consent of the deceased husband.
iv) Sn. 12 provides that the adopted child is the child of its adoptive mother and also of father. (Subhas Misir Vs. Thyagi Misir), from the date of adoption.
v) Further it is provided that the adopted child shall not divest any person of any estate which is vested in him or her prior to adoption. This clearly abrogates the rule of the divestitute
of estate which was the cause of ruinous litigation for about a century.
In this regard the leading cases are :
i) Ramachan,dra Vs. Balaji
ii) Anam Vs. Shankar
iii) Srir-fvas. Vs. Narayan
Bhuvaneswari Vs. Neel Kamal. V&) As regards the ceremonies to be performed in adoption, the Act/learly states that Datta homa is not essential. It is optional. The secular character is introduced into the system of adoption.
Ch. 3,3. Essentials of a valid adoption .
The Act specifies four requisites for a valid adoption :
i) The person adopting must have the capacity to adopt and jnust have the right to take in adoption.
ii) The person giving in adoption must have the capacity to give in adoption.
iii) The adoptee Dattaka must be capable of being adopted.
iv) The adoption must comply with the other conditions specified in the Act.
Explanation of each condition:
i) A Hindu male only could take a boy in adoption according to old law, A female could not adopt. A widow could adopt only with the consent of the deceased husband. According to the new Act, a Hindu male or female has the capacity to adopt. A female may adopt for herself in her own right. The consent of the husband is not required.
The adoptive father or mother must be a Hindu. The Hindu male must be (1) of sound mind, (2) not a minor and (3) wife's consent is necessary. But, if the wife has renounced the world or has became a convert to some other religion or is of unsound mind as declared by the court, then consent is not necessary. In case of more than one wife> the consent of all is necessary. A Hindu female may take a child in adoption. At the time of adoption, she must be of sound mind and not a minor. She must be unmarried or a widow or a divorcee. However, a wife may take-in adoption if her husband has renounced the world, has been declared by the court as of unsound mind or has become convert to other religion.
ii) Person giving in adoption : Father, Mother or Guardian may give in adoption. A father may
give in adoption with the consent of his wife. However, if the wife has renounced the world, or converted to some other religions, or has been declared to be of unsound mind by the court, consent is not necessary. A Mother may not give when the child's father is alive. However, if he has renounced the world or has become a convert or a lunatic, his consent is not necessary. The Guardian may give in adoption with the permission of the District Court.
The Guardian gets the right when both father and mother of the child are dead, or of unsoundmind or when they have renounced the world.
If the child has no father, mother or guardian, then it could not be taken in adoption according to the Act. However, in 1962, an amendment was made. According to this, whether the child is legitimate or illegitimate or an orphan it could be taken in adoption provided it is a
Hindu according to the Act. The permission of the court is necessary. Adoptee : According to old law only a boy answering certain qualifications could be taken in adoption. A daughter, an orpan or an illegitimate son, or a person born blind, dumb, deaf could not be taken in adoption. (There was also another restriction. The adoptive father must have been in a position to marry the mother of the boy, in her maiden state). There were also restriction relating to age.
According to the new Act, the adoptee may be a boy or a girl, the person must be a Hindu, must not be married, must be within 15 years of age arid must not have ,been already taken in adoption.
iv) The other restrictions :-
a) The adoptive father or mother must not have a living son, son's son or Son's Son's son (adopted or Aurasa).
b) If the daughter is to be taken in adoption, the adoptive father or mother must not have a daughter or son's daughter living.
c) If a male wants to take a girl in adoption, he must be elder to her at least by 21 years. If a female is to take a boy in adoption, she must be elder to him at least by 21 years. This is a rule of prudence.
d) The same child cannot be taken in adoption by 2 or 3 per sons.
e) There must be actual giving and taking, with an intention to transfer the child. Suffice it, if the parties know that they are transfer ring the child from its natural family to the adoptive family. Registration of adoption is not necessary, but only optional. However, Dana and Sweekara-Giving and taking are essential. The mere execution of an adoption deed is not adoptio™ Their" must be the physical act of giving and taking. S. Ghosh Vs. Krishna Sundari (Calcutta). Adopted boy sued after attaining majority. There was no actual
Dana and Swekara, therefore the adoption was invalid.
f) Formalities: Dattahomam (i.e. offering clarified butter to fire by way of religious oblation) is optional. Hence, performance of datta homam is not essential..
Ch. 3.4. Legal effects of adoption :
Art. 12 sets out the legal effects of a valid adoption.
i) The adopted child is deemed to the child of the adoptive father and adoptive mother
for all purposes, and effects. This is effective from the date of adoption and from such
date all the ties of the child in the natural born family are severed and replaced by the new
family. Hence, the adopted child cannot renounce and return to his family. Further,
adoption once made cannot be cancelled. This has secured the position of the
adopted child.However certain exceptions have been provided.
i) The adopted child cannot marry any person whom it could not have married if it were continued in the natural-born family.
ii) Any property vested in the adopted child before adoption in his natural-born family continues to vest in him. Hence, he is entitled to his property in his natural-born family including his undivided coparcenery interest. Any obligations like maintenance attached to that property continues and hence, his such property is liable. But there is no personal obligation.
iii) The adopted child shall not divest any person of any estate which is vested in or her, before the adoption, i.e., no divestiture in the adoptive family.
iv) Doctrine of 'relation back': If a widow took a boy in adoption, it related back to the death of the adoptive father for purposes of continuing the line and of divesting of the property.
The leading case is Amarendra Vs. Santan Singh : In this case one Raja Brijendra died unmarried. His collateral succeeded, to the estate. As the family custom prevented females
from succeeding to the Raja; Indumati the mother of the Raja, adopted Amarendra to her husband Brijendra. Question was whether this adoption dated back to the death of the Raja, and divested Benamali of the estate. The Privy Council held that she could be divested. Hence, Amarendra succeeded. This was explained by the Supreme Court in Srinivas Vs.Narayan. It stated that adoption dated back to the date of death of Brijendra. This doctrine has no application now.
Other leading cases:
i) Subash Misir Vs. Thagir Misir : The Supreme Court held that a child adopted by the widow was the child of both the adoptive widow and her deceased husband. Hence, they are adoptive parents.
ii) The leading case is :
Sawan Ram V. Kalavanti (1967), the Supreme Court held that an adopted son was a preferential heir. A died leaving a widow B. B alienated a part of the property of A. Sawan Ram a collateral, challenged and claimed as reversioner. B adopted D (Deep Chand). Then B died. D brought a suit. It finally went to the Supreme Court which held that Deep Chand became a member of the adoptive family of A, and, that the adoption was not only to herself
but also to her deceased husband. (The property was vested in the widow B, as per Sn. 14d. of the Hindu Succession Act, and hence, the adopted son succeeded to it).
Ch. 3.5. Dwayamshana adoption :
It means son of two fathers. It is only a variety of dattaka form. It is of two kinds : Anitya i.e., incomplete and Nitya i.e., Absolute. Anitya is initiated by the natural father. The 'boy' is considered as son of two fathers but incompletely. This is not in vogue. Nitya is recognised by law. There is a condition 'This is the son of both of us' natural and adoptive fathers. This is an agreement. There may be an implied condition. The formalities are the same as dattaka-giving and taking. But, the stipulation is an addition. As the adopted boy is the son of two fathers, he is equally the son of two mothers. The son inherits to both the families. This type of adoption was held valid in malakappa v. mallappa(1976).
Ch. 3.6. Kritrima adoption :
This is obsolete except in some areas in the West Coast of India. Some features :
i) The boy may give himself in adoption. His consent is essential. Consent of both parties essential.
ii) A male may adopt; a female may adopt. A wife may adopt to herself even during the lifetime of her husband.
iii) The person must be of the same caste; He must be of age to give consent.
iv) Ceremonies not necessary, v) The boy inherits to both the families.
Ch. 3.7.Illatom adoption :
This is a customary form. Illatom is the affiliation of a son-in law in consideration of the management of the family property. In vogue in parts of A P. Tamilnadu and among Reddies and kawars.