Adoption Laws in India

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“ADOPTION LAWS IN INDIA” table of content introduction research methodology [chapter- I] Adoption under Hindu Law Applicability of the Act The necessary requirements for a valid adoption Necessary capacity of the person undertaking adoption Necessary capacity of the child being adopted Identification of the adoptive mother Certain specific conditions with respect to adoption Outcomes of adoption [chapter-ii] Adoption under Muslim law prophet’s idea of adoption Muslim personal law (shariat) application act 1937 doctrine of acknowledgement kafala conclusion bibliography

introduction

“Adoption” means the process through which the adopted child is permanently separated from his biological parents and becomes the legitimate child of his adoptive parents with all the rights, privileges and responsibilities that are attached to the relationship.”[1] This concept was brought in, to provide a family to the abandoned or neglected children so as to provide love, care and support to them. In the past there was no codified law for this purpose. It was undertaken mainly for the purpose of continuance of heritance and for performing the basic ritual of funeral. However, with time, the law in this respect evolved. As this is related to the determination of legal affiliation of a child, this becomes part of the personal law Though in the present state, we do not have a secular law with respect to the concept, however Hindu Adoption and Maintenance Act, 1956 has been enacted laying out a complete code. This Act however is applicable only to Hindus. It deals on a variety of issues concerning adoption. Under Muslim law, the law pertaining to it is still unclear, with the Juvenile Justice (Care and Protection) Act, 2002 acting as a kind of relief for people who want to undertake adoption. Further, the concepts of acknowledgement and Kafala play important role under the Muslim law. Chapter I would deal with the laws of adoption under Hindu law and Chapter II with the laws regarding the same with respect to Muslim Law.

research methodology

Doctrinal form of research has been undertaken for the project with the data being relied upon being either primary or secondary in nature Objectives 1. To Study and analyse adoption under the Hindu and Muslim laws 2. To analyse the cases regarding to adoption. Hypothesis Adoption as a concept is not recognised by all the religions. There is no uniform secular law on adoption for all religions in India. Scope and Limitation The scope of the paper has been restricted to the practise of adoption under Hindu and Muslim Law

[chapter- I] Adoption under Hindu Law

If a Hindu wants to seek for adoption, he/she can do so under the Hindu Adoption and Maintenance Act, 1956(hereafter, referred as HAMA).[2] In the ancient period, adoption as a process was not carried out. It had the societal stigma attached to it. It was understood as a consequence of impotency of male member. Further, the women had to suffer if she could not give birth to a male child. Thus, adoption under the ancient period could be attributed to two major factors namely, to continue the ritual of conducting funeral and that of following the family ancestry for which a male child was a must. Thus, to bring about a change in the practise, the laws in relation to adoption were codified. It is important to note that adoption once undertaken under this law for Hindus is irrevocable. Salient features of the Hindu Adoption and Maintenance Act, 1956.

Applicability of the Act

The act is applicable only on Hindus, as what is defined under Section 2[3] which says that anyone who is a follower of Virashaiva, or Brahmo or Arya Samaj or any person who is by religion a Buddhist, Jaina or Sikh will be considered a Hindu. Further the other features could be reiterated as follows:
  1. It clearly excludes anyone who is a Muslim, Christian, Parsi or Jew by religion.
  2. It covers both legitimate as well as illegitimate child, in a case where either both the parents are Hindus as defined above or in a case where any one of the parent satisfies the above condition.
  3. Further, in situations where the child has been discarded by both the parents, or where his parentage is unknown, and in such a case he is brought up as a Hindu by virtue of his practices.
  4. One who got converted or re- converted to a Hindu.

The necessary requirements for a valid adoption

There are certain requisites which must be followed for a valid adoption as clearly defined under section 6[4] which are namely,
  1. The person who is adopting must have the valid capacity to receive adoption.
  2. The person who is carrying out adoption must have the capacity to do so.
  3. The person who is being adopted must also have the capability to get adopted.

Necessary capacity of the person undertaking adoption

  1. Under the aforesaid Act the capacity of a male Hindu and a female Hindu is specifically mentioned under Sections 7[5] and 8[6]. The two essentials for the same are that he/she should be of sound mind and must not be a minor, in lieu of considering the fact that if he/she has a living husband/wife present, consent must be taken from him/her under all the circumstances unless and until it is shown that the husband/wife has ceased to be a Hindu, or has renunciated the world entirely, or has been adjudged as one of unsound mind. In the case of “Arumugha Udayar v. Valliammal”[7], the question was concerning if a husband could carry out the adoption process even if wife rejected to the same. It was held, that consent of wife is a necessary condition and hence adoption cannot take place.
  2. Moreover, it is clearly established that only the father or mother of the guardian of a child could give the child in adoption.[8] Except these three, not other person could carry out the task.
  1. Only in cases where the father or the mother are dead or have discarded the child or have taken complete renunciation of the world or have been adjudged of having unsound mind or the identity of the child is unknown- the guardian will have the capacity to carry out adoption thereby giving the child.
  2. Further, the permission from court is a must for guardian to carry it out. The court will look into different parameters to determine the welfare of the child keeping in mind the age, the desires and mental understanding of the child. Also, no consideration or reward of the adoption must be undertaken except by what is sanctioned by the Court in such cases of adoption by a guardian.

Necessary capacity of the child being adopted

Considering the fact that the main object of the adoption as a concept is the welfare of the children so that he/she gets a family, the Act lays down conditions as to who can be adopted under Section 10 of the aforesaid Act.[9]First and foremost, a child must be Hindu for the conditions to be applied under the present Act. Secondly, he/she must not be previously adopted. Thirdly, he/ she must be unmarried, unless any kind of custom applies to the contrary. And lastly, that he/she must not be more than 15 years, unless any kind of usage or custom applies to the contrary. In the case of “Amar Singh v. Tej Ram”[10], the issue was as to what could be construed to be a custom. It was held, that any particular custom which is followed for a long time is to be construed as a law and that it need not be proved. Even a child who is physically disabled could be adopted if he fulfils the above conditions and the law puts no bar on them. The same was reiterated in the case of “Devgonda Raygonda Patil v. Shamgonda Raygonda Patil.”[11]

Identification of the adoptive mother

Where a Hindu male adopts a child, his living wife shall be considered as the adoptive mother. In cases where it is a bachelor who undertakes such adoption, the wife whom he eventually marries shall be considered to be the step- mother of the child adopted. Similarly, where a widow or an unmarried women undertakes the act, the husband whom she marries consequently, shall be considered to be the step- father of the adopted child.

Certain specific conditions with respect to adoption

The Act lays down certain specific conditions to be fulfilled under various circumstances that may prevail in course of adoption[12]. They are as follows.
  1. In cases of adoption of a son, the condition is that the person whether male or female who is undertaking adoption should not have a “Hindu son, son’s son or son’ son’s son”[13] existing during the time when the adoption is carried out.
  2. In cases of adoption of a daughter, the condition precedent to carry it out is that the person undertaking it should not have a “Hindu daughter or son’s daughter”[14] existing during the time when the process is being carried out.
  3. Further, in situations where it a male member carrying out a adoption and one who is to be adopted is a female, in such cases, it is necessary the adoptive father is minimum 21 years older than girl child who is being adopted.
  4. It is important to note that the child once adopted cannot be re-adopted simultaneously or by 2 or more persons.
  5. There must be actual transfer of the child from the family of where he/she is born to the adoptive family. Any kind of ceremony is not mandatory.
It is to be considered that the existing son or daughter present in above circumstances prior to adoption must be either by way of a legitimate blood relationship or by adoption. The case governing the same is that of “Charan Singh v. Major Singh” where it was held that the “son used in Section 11 would only imply a legitimate son”[15]

Outcomes of adoption

Once the adoption is done, the child under all circumstances is a deemed child of one who adopts him/her and all the attachments with the parents in the family where he was born stands severed. However, the child is not supposed to marry with the person whom he wasn’t allowed to marry previously as well. Any kind of property which was prior to adoption vested in the child along with the obligations attached shall stand as it is and will not be affected. Further, the child could also continue to sustain the relatives which he had in the family where he was born. “The person who adopts a child has the power to set out his/ her property by way of transfer or by will subject to any kind of agreement to the contrary.”[16] It was clearly laid down in the case of “Baban v. Parvatibai Dagadu Dange” that after adoption the position of the adopted child is like a natural born child excepting for the purpose of marriage and adoption.[17] In the case of “Kartar Singh v. Gurdial Singh”[18], the son who was adopted claimed rights over the property in the family of where he was born and which was ultimately denied by the Court. Further, for purpose of adoption, there is no mandatory requirement of specific registration.[19] When a dispute in relation to it arises, the court will cautiously presume from any document presented purporting to adoption made.[20] Further, the fundamental principle of equality of status and equality before law is well acknowledged in the matter of adoption.[21]

[chapter-ii] Adoption under Muslim law

The adoption law after India’s independence remained the same. However there were voices raised in the country regarding a secular law for adoption in the country. Under the law it was still only a Hindu who could adopt a child under the Hindu Adoption and Maintenance Act 1956. The nearest one person other than Hindu could come to adopt a child was to follow the guidelines under the Guardians and Wards Act.[22] However there was one problem with following this kind of route because it wasn’t adoption in full fledged sense. In order to bring out a secular law about adoption in India with an ambit to bring all the religions under one law, the Indian government came up with the National Adoption Bill 1980. It however faced stiff opposition from the Muslim community as they believed that the “Quran” does not allow adopting a child under the Islamic law. Since the Muslims opposed the law, it was not received well in all corners of the society. The blocking of a secular law for adoption for all religions being blocked by Muslims was not acceptable to many sections of the society. “If Islam does not recognize a social or economic concept, the state cannot compel every Muslim to keep away from it. If that were possible, our banking laws should not be available to any Muslim, since Islam does prohibit interest on money”[23]

prophet’s idea of adoption

Prophet Mohammed opposed adoption because he thought there would be confusion among sons as to who is real and who is adopted. His main idea was that a real son could never be replaced. A real son is a real son and no adopted son could ever take the place a real son. Prophet talks about only those situations or cases when already a man has a son. He however fails to acknowledge a situation when a man does not have a son at all. It is the Mohammedans who are bound by the law that they cannot adopt a child. The Shariat Law however does not put any such prohibition to adopt a child.

Muslim personal law (shariat) application act 1937

Section 2 of the Shariat Act[24] talks about as to, who would be governed by the Shariat Act. However the above act does not make any special mention of adoption as unlike to marriage, divorce, guardianship and succession. One could however take help of judgements given by the High Courts and Supreme Court in order to interpret this aspect that adoption could be done under this act even though it has no special mention of adoption. In the case of “Puthiya Purahil Abdurahiman Kurnavan v. Thuyath Kancheentavida Avoomma”[25] and “Maulvi Mohd. v. Mahboob Begam”[26] the non mention of other subjects such as adoption in respect of which a valid custom could govern and be binding on the parties does not mean that it is not permissible for the parties to rely on such a valid custom, if there is one.[27] In the case of “Mohammed Yunus v. Syed Unnisa”[28] the apex court considered and discussed about the scope of section 2 under the Shariat Act. The court held that non-mention of subjects like that of adoption under the law did not mean that one cannot rely under the valid customs. Therefore one could not say that the Holy Quran prohibits a person from adopting a child under absolute terms. One could always take the refuge under the Muslim Personal Law Act as it does not abrogate adoption. The Court held that Mohammedan may also have adoption allowed[29]. In the case of “Mst Bibi v. Syed Ali” [30] the court came out with the following findings
  1. Adoption as a rule is not unknown to the Muslim Law
  2. Mohammedans can also adopt by the virtue of customs
  3. Any Muslim who alleges that by practise of custom he can adopt a child has to prove it in the court of law. [31]

doctrine of acknowledgement

The Muslim law does not recognize the concept of a putative father as it believes that as an illegitimate son has no rights over the inheritance of property. Doctrine of acknowledgement can only be used to test the legitimacy in cases where there is real paternity. Muslim law uses this as a strategy to give legal status to a particular relationship. The law states that the acknowledger and the acknowledgee must have an age gap of 12 years and 6 months.[32] There are only two conditions under which a father could acknowledge paternity
  1. Child of unknown paternity
  2. When there is no definite proof as to child is the offspring of whom.
The Doctrine of acknowledgement only applies to those cases where there is a doubt on regarding the legitimacy of the particular child.

kafala

Under the Muslim Law one is allowed to raise someone else’s child but the child in this case unlike adoption does not become the child of the new parents rather retains his right with his or her original parents. This form or practise adopted under the Muslim law is called as kafala. Kafala is also known as “alternative care” Therefore what we here find out is that the Muslim Law does not prevent the adoption of a child. However when one does it through the different steps above, it still does not count for adoption as still the child does not get or gain the right to be the heir of the adopted family. This is in turn defeats the whole purpose of adoption. The Muslims, however can carry out the process of adoption if they are willing to under Juvenile Justice (Care and Protection of Children) Act.[33]

conclusion

The project therefore deals with adoption laws in India with special focus on the Hindu and Muslim laws relating to adoption. Adoption of children is basically so as to for the continuation of a family lineage. Adoption as a concept has helped those couples who were not able to have a child. Adoption laws in India have been clearly specified for the Hindus. The Hindu Adoption and Maintenance Act deals with adoption by a Hindu .Therefore adoption in India for a Hindu is pretty easy. Under Hindu adoption the adopted child loses his rights over the earlier family. Adoption however in Muslim Law has not been clearly specified. As such on the outright Muhammedan Law doesn’t allow the adoption of child. A Muslim could however adopt a child either through the process of kafala or under the doctrine of acknowledgement, under the Shariat Law or under the Juvenile Justice Act.

bibliography

Cases Amar Singh v. Tej Ram, AIR 1982 P &H 282.....................................7 Arumugha Udayar v. Valliammal, AIR 1969 Mad 72...............................6 Baban v. Parvatibai Dagadu Dange, 1978 Mah. LJ 604.............................9 Charan Singh v. Major Singh, ( 1962) 78 Punj LR 367..............................8 Devgonda Raygonda Patil v. Shamgonda Raygonda Patil , AIR 1992 Bom. 189..........7 Ghisalal v. Dhapubai, AIR 2011 SC 644.........................................9 Kartal Singh v. Gurdial Singh , (2008) 1 HLR 657 (P&H)...........................9 Maulvi Mohd. v. Mahboob Begam, AIR 1984 Mad 7..............................10 Mohammed Yunus v. Syed Unnisa , MR 1961 SC 809..............................10 Mst Bibi v. Syed Ali, AIR 1949 All 769.........................................11 Neno Khan v. Mst. Sugani , 1974 (DC) 8........................................10 Puthiya Purahil Abdurahiman Kurnavan v. Thuyath Kancheentavida Avoomma , AIR 1956 Mad 244 10 V. Ravishandram v. R. Ramesh Jayaram, (1998-3) 124 Mad. L.W 822 (D.B)............9 Vishvanath Ramji Karale v. Rahibai Ramji Karale and Ors, AIR 1931 Bom.105.........9 Statutes Guardian and Ward Act, 1890.................................................9 Hindu Adoption and Maintenance Act, 1956......................................5 Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000)............3, 12 Muslim Personal law (Shariat) Application Act, 1937..............................10 Books David Pearl, “Textbook on Muslim Law”, ,University of California, 2008..............11 Martha Nussbaum , “Sex and Social Justice”, Oxford University Press, 2000...........10 1 | Page
[1] Section 2(d), Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000) [2] Hindu Adoption and Maintenance Act, 1956. [3] ibid s 2 [4] ibid s 6 [5] ibid s 7 [6] ibid s 8 [7] Arumugha Udayar v. Valliammal, AIR 1969 Mad 72 [8] HAMA s 9 [9] ibid s 10 [10] Amar Singh v. Tej Ram, AIR 1982 P &H 282 [11]Devgonda Raygonda Patil v. Shamgonda Raygonda Patil , AIR 1992 Bom. 189 [12] HAMA s 11 [13] ibid s 11(i) [14] ibid s 11 (ii) [15] Charan Singh v. Major Singh, ( 1962) 78 Punj LR 367 [16] HAMA s 13 [17] Baban v. Parvatibai Dagadu Dange, 1978 Mah. LJ 604 [18] Kartal Singh v. Gurdial Singh , (2008) 1 HLR 657 (P&H) [19] Vishvanath Ramji Karale v. Rahibai Ramji Karale and Ors, AIR 1931 Bom.105 [20] V. Ravishandram v. R. Ramesh Jayaram, (1998-3) 124 Mad. L.W 822 (D.B) [21] Ghisalal v. Dhapubai, AIR 2011 SC 644 [22] Guardian and Ward Act, 1890 [23] Martha Nussbaum , “Sex and Social Justice”, Oxford University Press, 2000 [24] Muslim Personal law (Shariat) Application Act, 1937 [25] Puthiya Purahil Abdurahiman Kurnavan v. Thuyath Kancheentavida Avoomma , AIR 1956 Mad 244 [26] Maulvi Mohd. v. Mahboob Begam, AIR 1984 Mad 7 [27] ibid [28] Mohammed Yunus v. Syed Unnisa , MR 1961 SC 809 [29] Neno Khan v. Mst. Sugani , 1974 (DC) 8 [30] Mst Bibi v. Syed Ali, AIR 1949 All 769 [31] ibid [32] David Pearl, “Textbook on Muslim Law”, ,University of California, 2008 [33] Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000)
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