INTRODUCTION
The Hindu Adoption and Maintenance Act of 1956 deals with the subject of adoptions and maintenance among Hindus. This Act provides for the adoption not only of boys but also of girls. One of the significant features of this Act is it enables a person to adopt a child irrespective of his caste and does not emphatically interfere with the religious beliefs of our people in any way.
Adoption is the process of transplantation of a child from the family in which the child is born to another family where the child is given by his / her natural parents by way of a gift. The adopted child acquires all the rights and status in the new family and all his ties with the old family come to an end. According to Manu, adoption is the “taking of a son, as a substitute for the failure of a male issue’. The Hindu Adoption and Maintenance Act has brought significant changes by widening the scope of the definition of adoption. If any adoption is made which contravenes this Act, then the adoption will become void. So, to validate the adoption process one needs to comply with this Act.
CHANGES MADE BY THE HINDU ADOPTION AND MAINTENANCE ACT IN THE LAW OF ADOPTION
The remarkable changes[1]that have been made under the Hindu Adoption and Maintenance Act are mentioned below. A comparative analysis[2] of both the old and new Hindu Law of Adoption has been described here.
- Under the old law, a woman was deprived of the right to adopt a child unless she was a widow. Even the widow could not adopt herself but she had to get permission from her husband during his lifetime or had to obtain consent from sapindas. The Shastric law was based upon a text of Vashishtha that says that a woman can adopt only with the consent of her husband. The text gave rise to four different interpretations. Under the Mithila School of Law, a widow was not allowed to adopt while the Beneras and Bengal Schools allowed her to adopt only if her husband had given express authority to her to adopt. Under the Dravida School, a widow could adopt with the assent of the sapindas of the husband while in the Maharashtra School, a widow needs no authority from anyone to adopt.
Under the present Act of 1956, any adult woman whether married, unmarried, widowed, or divorced has the right to adopt a child.
- Under the old law, a girl could not be adopted as she was not competent to perform any religious rituals and could not confer any spiritual benefits on the adopter or the ancestors except in certain cases as per custom.
Under the present Act of 1956, a Hindu male or female can adopt a girl or a boy.
- Under the old law, a person who is under 18 years of age could adopt if attained the age of discretion.
Under the present Act of 1956, a person who is under 18 years of age cannot adopt.
- Under the old law, restriction regarding the adoption of a boy varies in different schools. Adoption of a married person was only allowed in Bombay School.
Under the present Act of 1956, a boy or a girl who is married or who has completed the age of 15 years cannot be adopted unless custom or usage permits such adoption.
- Under the old law, a married man could adopt a boy even without the consent of his wife or wives and even with their objection to adoption.
Under the present Act of 1956, a married man cannot adopt without his wife or wives’ consent except in certain circumstances if she is declared by the court to be of unsound mind, has renounced the world, or ceased to be a Hindu.
- Under the old law, the adopted son should be of the same caste as that of the adoptive father and should be so related that the marriage between the adoptive father and the natural mother of the boy in her maiden state would be illegal.
Under the present Act of 1956, any Hindu can adopt a child from any caste.
- Under the old law, an illegitimate boy or congenitally deaf and dumb boy could not be adopted.
Under the present Act of 1956, any child can be adopted without any exceptions.
- Under the old law, only parents are capable of giving up a boy for adoption.
Under the present Act of 1956, parents, as well as guardians, can give the child in adoption. For that, the guardians need to get permission from the Court.
- Under the old law, the father without the mother’s consent can give up the boy for adoption.
Under the present Act of 1956, the father cannot give the boy in adoption without his mother’s consent except in certain circumstances if the mother ceases to be a Hindu, renounced the world, or is declared by a court to be of unsound mind.
- Under the old law, after the adoption the doctrine of relation back was applied and he was conferred the right of divesting other persons of their rights in the adoptive family.
Under the present Act of 1956, the doctrine of relation back is not applicable and the adopted child will have the right in the adoptive family only from the date of adoption. Even the child cannot take away the property rights of other persons in the adoptive family which have already been taken away before the adoption.
- Under the old law, there are no express restrictions where the adopter and adoptee are of different sexes.
Under the present Act of 1956, if the adopter and adoptee are of different sexes, there should be an age difference of 21 years.
- Under the old law, a Hindu in Andhra Pradesh can adopt a son-in-law under the custom of Illatom adoption.
Under the present Act of 1956, Illatom Adoption is not recognized.
- Under the old law, a Hindu husband can prohibit his wife from taking adoption after his death.
Under the present Act of 1956, a Hindu husband cannot prohibit his wife from taking adoption after his death. After his death, his widow can adopt a child according to her own will and convenience.
- Under the old law, if a Hindu only has daughters he may adopt the son of his daughter as his adopted son under custom.
Under the present Act of 1956, the adoption system of ‘putrika putra’ has been abolished.
- Under the old law, Datta Homam was celebrated at the time of adoption.
Under the present Act of 1956, Datta Homam is not at all necessary. In the Adoption ceremony only giving and taking takes place.
CONCLUSION
The amendment of the Hindu Adoption and Maintenance Act has brought numerous changes in the process of adoption. Previously no such rights were granted to the wife and even the adoption of daughters was also not allowed. However, the present Act has a positive impact on the adoption by allowing the adoption of daughters, giving equal rights to husband and wife, and making the ceremonial processes more secular and uniform.
Author(s) Name: Manisa Saha (Jogesh Chandra Chaudhuri Law College, Calcutta University)
Reference(s):
[1]‘Annai Sagayam’, ‘Changes in Adoption’ (Scribd) <https://www.scribd.com/document/487296909/CHANGES-IN-ADOPTION>accessed 24th April 2024
[2]‘Garv Arora’, ‘Changed Position of Adoption under Hindu Law’ (Legal Services India E-Journal) <https://www.legalserviceindia.com/legal/article-9710-changed-position-of-adoption-under-hindu-law.html> accessed 24th April 2024
