SANA Adoption

8/18/2019 SANA Adoption

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FACULTY OF LAW

JAMIA MILLIAISLAMIA

Hindu Law

Adoption

Submitted By:-

SANA ANWAR

BALLB!H"n#$

%&d Yea&'(t) Seme#te&


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ACKNOWLEDGEMENT

I would like to thank my teacher of Hindu Law, Mrs. KehkashaDaniyal, for

helping me with my project.

I want to give special thanks to the lirarian of my university who made every

relevant material regarding my topic availale to me at the time of my research

work and gave me assistance.

I would also like to thank my family and friends for their constant support and

guidance for this project.

Sana

Anwar

* + , a e


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CONTENTS

1.I ntroduction

!. hindu law adoption

% + , a e


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INTRODUCTION

"#he Hindus have regarded the institution of sonship as important as the institution of marriage.

#o have a son was considered a $must$ for every Hindu. %egetting a son was one of the three

dets &dets to the names i.e' ancestors( that a Hindu was re)uired to discharge in this world.

*ust as a marriage was never considered a purely secular act, so was sonship. +on is called a

putra ecause the son delivers his father from hell, called $put-%audhayana declared #hrough a

son one con)uers the world, through a grand"son one otains the immortality, and through the

great"grandson one ascends to the highest heaven./!

0doption is the legali1ed recognition of a person as son2.0ccording to Hindu notions, a son is

necessary to a person not only to continue the linage ut also to offer olations to the manes or

ancestors to the fourth degree. #he person adopted has all the privileges of a natural orn son

e3cept there was a reduction in the share of property, different according to different schools, if a

natural son was orn suse)uent to adoption4.

5n adoption, adoptee gets transplanted in adopting family with the same rights as that of the

natural orn son. 0dopted child ecomes coparcener in the *oint Hindu 6amily property after

severing all his ties with natural family7.

+ome judges hold that the oject of adoption is twofold to secure performance of ones funeral

rights and to preserve the continuance of ones linage 8. 9nder Hindu law, there were many rules

relating to adoption which could e supported only on the asis that adoption was a sacramental

.Manu / .%0

**1 .21 2 See a3#" Manu I4 1 .%5-.%06 /i#)nu 4/1 771 726 Ya8na9a3ya .1 50

% +harma, Dr. %asant, K., Hindu Law, !nd :d., ;entral Law . p. -?2.

7 Ra)unat) Be)e&a 9 Ba3a&am1 AIR .;;2 O&i %0

( Ba#a9a&a8a($ .* SCC *;>

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act. 6or instance the following rules could only e supported only on this asis the adopted son

must e a reflection of a son &saunaka( this prevented the adoption of orphans and illegitimate

children@ daughter could not e adopted no one could have more than one adopted son@ one

could not adopt a child whose mother one could not marry when she was a maiden@ thus a

daughters son or sisters son could not e adopted as one could not marry his sister or daughter A.

#he same seems to e the reason for the rule that when a widow adopted a son, it was always

deemed to e adoption to her deceased husand. #he principle is responsile for the doctrine of

Brelation ackC.

#he Hindu 0doptions and Maintenance 0ct, -?78, has steered clearly off from all

religious and sacramental aspects of adoption and has made adoption a secular institution and

secular act, so much so that even a religious ceremony is not necessary for adoptions. 9nder

the legislation there cannot e two types of adoptions, one purely secular and the other

sacramental. 0ll adoptions after -?78 are secular, and to e valid, must conform to the

re)uirement of the 0ct.

MEANING OF ADOPTION

0doptionC means the process through which the adopted child is permanently separated from

his iological parents and ecomes the legitimate child of his adoptive parents with all the rights,

privileges and responsiilities that are attached to the relationship. 0doption of orphan, aandoned

and surrendered children in India is governed y a set of guidelines notified y Eovernment of

India.

0doption is the transplantation of a son from the family in which he is orn, to another

family where he is given y the natural parents y way of gift. #he adopted son is then taken as

eing orn in the new family and ac)uires rights, duties and status there only, and his tie

with the old family comes to an end. #he concept of adoption is concerned with Hindus

only. ;oncept of adoption can e traced even from Fedic times. #he ancient te3ts Dattaka

2 Inde& Sin) 9 ?a&ta& Sin)1 AIR .;22 ,un8 *(0

5 @iwan1 ,a&a#1 M"de&n Hindu Law1 *>t) d1 A33a)abad Law Aeny1 A33a)abad1

*>>;


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Mimamsa, Dattaka ;handrika, Manu, Gagnavalkya, Eautama, %audhayana, and Kautilya etc well

refer to this concept.

#he adoption is not an institution peculiar to Hinduism, ut owes its origin to the

social communism peculiar to the primitive races. In early times, children irrespective of their

se3 were taken in adoption

Hindu law adoption

0doption is the admission of a stranger to the privileges of a child y irth" a legally

recogni1ed form of affiliation. #he adopted son is uprooted from his natural family and

transplanted in to adoptive family like a natural son. 0doption is a process to incorporate

a child permanently into a family with all the rights of a natural child, in which he was not

een orn. #raditionally, a child was adopted for temporal and spiritual purposes and

more recently, to satisfy the emotional and parental instincts of the adopters. Manu says, %y a

son, a man attains victory over all people@ y a son$s son he enjoys immortality@ and thereafter

y the son of that grandson he reaches the solar aodeC. #he +hastric Hindu Law looked

at adoption more as a sacramental than secular act. Hindus elieved that one who died without

having a son would go to hell called poota and it was only a son who could save the father from

going to


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family. #he reasons are twofold@ firstly to secure ones performance of funereal rights.

#he ancient foregoing myth that has e3isted long way ack in our so called pragmatic

society is that if a mans funereal is not done y his son then he would never get a place in

the heaven and that his soul would never rest at peace and that he would never attain

immortality and for preservation and the continuance of lineage. Lineage refers to the

concept of continuance of ones own family name. Hence, if a man would die sonless, it is

assumed that his family name would end at his death and hence there is re)uirement of a

male child in the continuance of family name. +o at that juncture of time there was

re)uirement of a male child in the family and hence the person used to adopt only a male

child. #here was no provision for the adoption of a female child.

0ncient Hindu +hastras recogni1ed Dattaka and Kritrima as types of sons. Dattaka sonwere further su divided into two types Datttaka ;handrika and Datttaka. .Datttaka

;handrika was the adoption not so necessary, adoption which was optional. Datttaka

+hishoma was the adoption that was compulsory for the performance of the funereal rights

and for the continuance of the lineage. In the Hindu +hastras, it was said that the adopted

son should e a reflection of the natural son. #his guaranteed protection and care for the

adopted son. He was not merely adoptive parents, ut all relations on the paternal and

maternal side in the adoptive family also came into e3istence. #his means he cannot marry

the daughter of his adoptive parents, whether the daughter was natural"orn or adopted. In

the modern adoption laws, the main purpose is considered to e to provide consolation

and relief to a childless person, and on the other hand, rescue the helpless, the unwanted,

the destitute or the orphan child y providing it with parents.

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ADOPTION UNDER HINDU LAW: PRESENT

STATUS

#he present scenario of adoption is far away from the sacramental aspect. #he present rule

of adoption is governed y the rules and regulations prescried y the statutory laws laid

down y the legislators. ;urrently, the adoption under Hindu Law is governed y #he

Hindu 0doption and Maintenance 0ct, -?78.#he Hindu 0doption and Maintenance 0ct,

-?78 e3tends to only the Hindus, which are defined under +ection"! of the 0ct and

include any person, who is a Hindu y religion, including a Firashaiva, a Lingayat or a

follower of the %rahmo,


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paramount consideration. +ection 8 of the said 0ct, provides aout the natural guardians of a

Hindu minor. +ection A of the very 0ct speaks aout the natural guardianship of adopted son.

STATUTES GOVERNING ADOPTION IN

RECENT TIMES: HINDU LAW

1) The Hindu adoption and Maintenance act, 19!

0doption in the Hindus is covered y #he Hindu 0doptions 0ct and after the coming of this 0ct

all adoptions can e made in accordance with this 0ct. It came into effect from !-st Decemer,

-?78.


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Section 6 enumerates the re)uisites of a valid adoption. It lays down that no adoption

shall e valid unless the person adopting has the capacity as also the right to take in adoption@ the

person giving in adoption has the capacity to do so@ the person adopted is

capale of eing taken in adoption, and the adoption is made in compliance with the other

conditions mentioned in ;hapter II. In the Hindu law the re)uirements for a valid adoption. #he

0ct reads"

-. #he person adopting is lawfully capale of taking in adoption

!. #he person giving in adoption is lawfully capale of giving in adoption2. #he person adopted is lawfully capale of eing taken in adoption

#he adoption is completed y an actual giving and taking and the ceremony called datta homan

&olation to the fire( has een performed. However this may not e essential in all cases as to the

validity of adoptionJ

Who May Adopt

Capacity of male (Section 7)

+ection A of the Hindu 0doptions and Maintenance 0ct, prescries the general capacity of

a Hindu male to take a son or a daughter in adoption if he is of sound mind and not minor.

+imilarly, section > of the 0ct empowers a female Hindu to take a son or daughter in

adoption suject to the fulfillment of conditions prescried in the 0ct. +ection -= speaks

aout the persons who may e adopted. #his section provides that a child male or female

is capale of eing taken in adoption if he or she is a Hindu and not already een

adopted. 0ny male Hindu, who is of sound mind and is not a minor, has the capacity to

take a son or daughter in adoption. + , a e


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re)uirement of the wife$s consent enales her to participate in the decision making process which

vitally affects the family. If the wife finds that the choice of the person to e adopted y the

husand is not appropriate or is not in the interest of the family then she can veto his

discretion.

Capacity of female (Section 8)

0ny female Hindu

-. who is of sound mind,

!. who is not a minor, and

2. ho is not married, or if married, whose marriage has een dissolved or whose husand

is dead or has completely and finally renounced the world or has ceased to e a Hindu, or

has een declared y a court of competent jurisdiction to e of unsound mind, has the

capacity to take a son or daughter in adoption. here the woman is married it is the

husand who has the right to take in adoption with the consent of the wife. 0 female

Hindu who is of a sound mind and has completed the age of eighteen years can also take

a son or daughter in adoption to herself and in her own right. 0fter the


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where the parentage of the child is unknown " the guardian of the child may give the child

in adoption with the previous permission of the court. #he court while granting

permission shall e satisfied that the adoption is for the welfare of the child and due

consideration will e given to the wishes of the child having regard for the age and

understanding of the child. #he court shall e satisfied that no payment or reward in

consideration of the adoption e3cept as the court may sanction has een given or

taken.

W!" MA# $% A&"'%&

o person can e adopted unless

-. he or she is a Hindu@!. he or she has not already een adopted@

2. he or she has not een married, unless there is a custom or usage applicale to the parties

which permits persons who are married eing taken in adoption@4. he or she has not completed the age of fifteen years unless there is a custom or usage

applicale to the parties which permits persons who have completed the age of fifteen

years eing taken in adoption

#hus, these are the rules and regulation prescried for determining as to what is the capacity to adopt,

to give in adoption and to e adopted.

"ther conditions for a valid adoption (Section )

#he other re)uirement for the adoption to e rendered as valid are that while adopting a child one

must take into consonance and consideration the following points.

-. if the adoption is of a son, the adoptive father or mother y whom the adoption is made

must not have a Hindu son, son$s son or son$s son$s son living at the time of adoption@

!. if the adoption is of a daughter, the adoptive father or mother y whom the adoption is

made must not have a Hindu daughter or son$s daughter living at the time of adoption@2. if the adoption is y a male and the person to e adopted is a male, the adoptive father is

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at least twenty one years older than the person to e adopted@

4. if the adoption is y a female and the person to e adopted is a male, the adoptive

mothers at least twenty one years older than the person to e adopted@

7. #he same child may not e adopted simultaneously y two or more parents@ the child to

e adopted must e actually given and taken in adoption with an intent to transfer thechild from the family of irth.

EFFECTS OF ADOPTION

In case there is asence of compliance of any one of these rules prescried y the stature #he Hindu

adoption and maintenance 0ct, -?78, the adoption would not e considered as valid adoption.

Section * declares that from the date of the adoption, an adopted child is deemed to e a child of

hisher adoptive father or mother for all purposes and his ties in the family of his or her irth shall

stand severed and replaced y those created in the adoptive family. In +artar Sinh ,- .urdial Sinh8

where the respondent who was adopted y his maternal grandfather claimed property rights in the

family of his irth, the court said that upon adoption no rights remain in the family of irth.

>0$ . HLR 2(5 !,H$

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proved otherwise.

/Welfare of minor is of paramount consideration0

0ccording to +ection -2, the adoptive child gets property rights in his new family, ut an

adoption does not deprive the adoptive father or mother of the power to dispose of his or

her property y transfer inter vivos or y will, unless there is an agreement imposing such

restriction

0doption once made is final and irrevocale. 0n adoption validly made cannot e cancelled y the

adopter, natural parents or any other person. or can an adopted child renounce his adoptive parents

and return to the family of his or her irth. #his means that if a person makes an adoption, under no

circumstances he or she gets rid of the child. 0n adopted child cannot again e given in adoption.

5nce an adoption has een duly made in accordance with law, it cannot e cancelled nor can the

adopted child, the adoptive parents and the natural parents destroy the right of the adopted.

estrictive ;onditions of 0doptions

+ection --, Hindu 0doptions and Maintenance 0ct.*ust ecause a person has capacity to

adopt, it is not necessary that he has also the right to make an adoption@ certain restrictive

conditions e3ist. #hese conditions are @

Na( Adoption of son- 0dopter must not have a Hindu son, son$s son or son$s son$s son. If he has

any one of these, he cannot make an adoption. +on or son$s son or son$s son$s son may e y

legitimate irth or y adoption. If the son, son$s son or son$s son$s son has ceased to e a Hindu,

an adoption of a son will e valid.?

&( Adoption of dauhter- If a Hindu wants to adopt a daughter, it is necessary that he must not

have a Hindu daughter, or a son$s daughter. :3istence of an adopted daughter or son$s adopted

daughter will also ar the adoption of a daughter. %ut if daughter or son$s daughter has ceased to

e a Hindu, adoption of a daughter can e validly made.-=

;Seti"n ..!i$

.>Seti"n ..!ii$

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#hese restrictive conditions were challenged in SandhyaSupriya+ul1amiv. 2nion of 3ndiahile

upholding the provisions as personal laws do not fall within the amit of (

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") THE PE#SONA$ $A%S AMENDMENT, ACT, "&1&

0fter the enactment of #he Hindu adoption and maintenance 0ct, -?78, the various

sections of these statutory provisions underwent several amendments. #he statute was put

into scrutiny and thence proposals for amendment were made. #hese proposals were then

incorporated through the personal laws amendment, 0ct, !=-=.#hus, here in this part of

this project we are going to discuss the amendments that have een already incorporated

aout this statute.

0mendment of section >

In the Hindu 0doptions and Maintenance 0ct, -?78 &hereafter in this ;hapter referred to as the

Hindu 0doptions and Maintenance 0ct(, for section >, the following section shall e sustituted,

namely

/>. ;apacity of a female Hindu to take in adoption " 0ny female Hindu who is of sound mind and is

not a minor has the capacity to take a son or daughter in adoption


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declared y a court of competent jurisdiction to e of unsound mind./@ &ii( su"section &2(

shall e omitted.

') HIND( MAINTENANCE G(A#DIANSHIP ACT, 19!

#he Hindu Minority and Euardianship 0ct, -?78 has codified laws of Hindus relating to minority

and guardianship. 0s in the case of unmodified law, it has upheld the superior right of father. It lays

down that a child is a minor till the age of -> years. atural guardian for oth oys and unmarried

girls is first the father and then the mother.


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ight of Inheritance and . %ut now it seems that y virtue of +ection

-!, he will e e)ually entitled.

CRMONIS OF A@O,TION

+.ll&vi(, Hindu 0doptions and Maintenance 0ct6or the validity of an adoption, performance of

necessary ceremonies is essential.-? %efore -?78, two ceremonies were considered to e

necessary &a(#he ceremony of giving and taking, and &( &atta!oma- #here was a controversy

whether the latter was an oligatory ceremony.!=#he &atta!omaisno longer"a necessary

ceremony.

!-

Ceremony of ivin and ta1in .#his ceremony has to e performed y the person who gives

the child in adoption whether he is father, mother or guardian, and e the person who rakes the

child in adoption. 0ccording to %audhayana

5ne should go to the giver of the child, and ask him, saying $Eive me thy son$. #he other

answers, I give Him. He receives him with these words, $I take thee for the fulfilment of my

religious duties I take thee to continue the line of my ancestors.$!!

he &attaMimansascomment is as under

.0 Rat)a Be)e&a 9 =ana Be)&a1 AIR *>>% !O&i$ (%*

.;U&mi3a 9 Hemunta1 .;;% O&i *.%6 ,a


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It is, therefore, estalished that the filial relation of adopted son is occasioned only y the proper

ceremonies, of gift, acceptance, homaand so forth, should either e wanting, the filial relation

even fails.!2


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attorney. It seems that no specific Shastricor customary ceremony is necessary. Ra8 .;; =" + , a e


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word $shall$ is crucial and presumption would e there unless and until it is disproved.24

However, the onus is on the defendant to prove that the document was read over and e3plained to

the plaintiff and that there was good faith in e3ecution of the document. If e3ecution of the

adoption deed is challenged on the ground of fraud or undue influence, the urden of proof is on

the party who alleges fraud and coercion.27 If in adoption the registered adoption deed had not

een signed y natural father, no presumption arises under +ection l8.28 If adoption itself is

disproved or when it is shown that the adoption deed was not e3ecuted voluntarily, the

presumption under +ection -8 is reutted.2A It an adoption is challenged long after it has een

made and it has all along een recogni1ed y memers of the family as valid adoption, the

urden to reut the presumption of valid adoption is very heavy on the person who challenges it.

If there is a registered deed, the onus is on the person who challenges an adoption. ecital in a

will aout a person eing an adopted son is a piece of admissile evidence, ut not conclusive

proof of adoption.2> #he one who alleges that the valid ceremonies of adoption have not taken

place has to prove it.2?

%7Ni3imaMu)e&8i 9 ?antaB)u#)an=)"#)1 *>>. SC *5*(

%(Su#)i3 9 B)""

%5="9inda 9 C)imaBai1 .;20 My# %>;6 S)tda


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'roof of adoption- 0n adoption is to e proved like any other fact.4= %ut in case of old

adoptions, presumption of validity arises. In the asence of a registered adoption deed, adoption

must e proved y some cogent evidence.4- %ut asence of registered deed does not nullify the

adoption. :vidence of relevant witnesses is enough. It is not necessary that everyone who is

present at the time of"adoption should e e3amined.4!

In 'enta1otaSatyaarayanav. 'enta1otaSeetharathnam:; 9 alleged adoption was made y the

husand and the first wife who was estranged at the time of adoption. #he estrangement etween

the spouses was due to the second wife taken y the husand. #hrough the second wife the

husand had three children. #he first wife though claimed maintenance for herself never claimed

maintenance for the /adopted child/. 9nder the circumstances adoption was held not to e

proved.

here the child all along lived with natural parents, name of natural parents was in the school, it

was held that the adoption deed was fraudulent.44 here adoption ceremony was proved y

witnesses, adoption deed was e3ecuted and registered, such adoption was held proved.

elationship of 0dopted ;hild+ection -4

+ection -4 lays down as to how an adopted child will e related to certain relations of adopter.

#he )uestion may arise in the following circumstances

&-( hen a Hindu adopts with the consent of his wife or wives, then in what relationship does

the child stand with the wife of the adopterJ

7>S"uney 9 @u3i @e9i .;0( O&i ...1 Sita Ram 9 ,u&am Ma31 .;0( O&i .5.6

/anda9a#i 9 ama3amma1 .;;7 A, .>*6 A&8ua 9 Bu)i .;;( O&i %*

7.Ra)a#a 9 =uu3nanda.;25 SC ;2*

7*C)andan 9 ADtabuddin1 .;;2 SC (;.

7%*>>( SC 7%2*

77BI#)iwanat)Manda3 9 A8ay ?uma& ?a>0 J)a& .*

** + , a e


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&!( hen adoption is made y a Hindu without the consent of his or her spouse, in those cases

where the consent of the spouse can e dispensed with, then how is the child related to the

spouse of die adopter J

&2( hen an adoption is made y a widow or widower, then

&a( in what relationship does the child stand with the spouse of the adopter whom he or she

marries suse)uently, or in what relationship does the child stand to the deceased spouse of the

adopter J

&4( hen an unmarried person &virgin or achelor( or divorcee adopts a child and suse)uently

remarries, then,

&a( what will e the relationship of the child with the suse)uent married spouse, and

&( in the case of a divorcee, what will e the relationship of the child with the divorced spouse J

+ection -4 provides answers e3pressly to )uestions posed in &-(,&2(&a( and &4(&a( and provides

answers to other )uestions y implication. hat are the answers y implicationsJ #he +upreme

;ourt answers them in one way and the 0ndhra


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Relationship 4ith a su5sequently married spouse- hen a virgin, achelor, widow or widower

adopts a child and marries suse)uently, the spouse in relation to the child is a step"parent

&stepmother or stepfather(.4A

Relationship of the adopted child of a 4ido4 or 4ido4er or divorcee 4ith the deceased spouse

or e


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the child. hen an 9nmarried woman adopts a son, the same is the position. 0nd it is sumitted

that the same will e the position of a divorcee &male or female( who adopts a child and then

marries. His or her new spouse will e a step"parent to the child and the e3"spouse &divorced

spouse( is not related to the child. In our sumission, the same should apply when a widow

adopts, ut in Sa4an Ram9 the +upreme ;ourt says that the deceased husand will e the

adoptive father. In A1hayv. Sarda>?the 5rissa High ;ourt said that widow$s son though will also

e the same of her deceased husand, he cannot divest his adoptive mother of the property

already vested in her. In Sa4an Ram@s case property was vested in a collateral. #he Madras High

;ourt in Arumuhav. ,alliamall >took a contrary view. 3f oth parties are not Hindus.7!

.;;( O&i *.*

(. !I;0>$ MLJ 7;7

(*Ni3e#)Na&in Ra8e#) La3 9 ?a#)mi&a1 AIR *>.> =u8 %

*( + , a e


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e achieved y the passing of the 0ct any other interpretation would e contrary to the letter and

spirit of the enactment.72

6emale child$s right to claim maintenance.hat +ection != of the 0ct stipulates is that a Hindu

parent is liale to maintain his legitimate or illegitimate male or female children. ormally such

liaility to maintain would continue until the child attains the age of majority. +uch liaility to

maintain the child, whatever e the se3, would continue until the child attains majority whether

the child is or is not ale to maintain itself out of its earning or other property. +o far as the male

child is concerned, his right to claim maintenance would cease when he attains the age of

majority. %ut so far as the female child is concerned, such right will continue even after she

attains majority, until she gets married provided she is unale to maintain herself out of her own

earnings or other property.74

+hare of adoptive son in joint family property.here ranch of the appellant on one side and

ranch of the adoptive son on the other side weir having half share each, the award of half share

to the adopted son is not proper.77

(%Sidda&ama>( B"m %5(

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Di!"tin# o$ P%op!%t&

+ection -! &c( specifically lays down that the adopted child shall not divest any person

of any estate which vested in him, or her efore the adoption. #he old Hindu law of divesting

of property on adoption was very complicated and a source of constant litigation 78. 9nder the

modern Hindu law this source of litigation and conse)uent dissentions in Hindu families have

een done away with y laying down that the adopted child cannot divest any person of the

property vested in him or her efore adoption. 6or instance, 0 died leaving his widow % and

two daughters O and G. 5n 0 s death %, O and G inherited properties of 0, each taking -2‟ rd share.

#his one"third share vests in each of them immediately on the death of 0. If now % adopts


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deceased coparcener, would have the effect of re"opening of the partition enaling the

adopted son to claim a share in the coparcenary properties as if they were still joint7>.

In +awan am v. Kalawati7?, a Hindu died in -?4> leaving ehind his widow .

took her husand s properties as a limited owner. In -?74, made a gift of some lands to her‟

grand"niece, %. O, a collateral of 0 and presumptive reversioner, sued for a declaration that

the gift to % was not inding on him. #he trial court gave the declaration prayed for. %

applied against it. >0 Seti"n .7 "D t)e Hindu Sue##i"n At1 .;(21 "n9e&t# "n3y t)at wid"w# e#tateint" )e& ab#"3ute


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did not relate ack to the date of the death of the husand and alienation made y the mother

after the adoption was valid unless her power has een restricted y ante"adoption agreement.

In i+han 2a/u*ao Me-ane 0. Su*e+h Sadhu Me-ane!' original owner of the

property died in -?-? and his widow gifted some property to defendants in -?4>. +he adopted

the plaintiff in -?A2 and she died in -?A7. It was held that the adopted son could not divest

suit property vested in defendants efore adoption even presuming that the gift was valid.

In Punitha0a33i A--a3 0. #a-a3in4a-!5, the +upreme ;ourt &Hegde, *.( held that a son adopted on

-2th *uly, -?78 cannot on strength of the doctrine or fiction of relation ack, divest the adoptive

mother of the property she inherited from her deceased husand &who ecame the adoptive father of

the adopted son( of which she ecame a full owner with commencement of the Hindu +uccession

0ct on -Ath *une, -?78.

9nder the provisions of +ection -4 of the Hindu +uccession 0ct, widow ecomes an asolute owner,

and it is not possile that the child adopted y her is divesting her of the right which has already een

vested in her 87.

Adoption /6 Copa*cene*+ %ido,

In An7u+h Na*a6an 0. 8ana/ai!!, Desai, *. remarked that the adopted son of the widow of the

coparcener will also ecome a coparcener with the surviving coparceners of the husand. #his view

2% AIR .;;2 B"m (>

27 !.;5>$ . SCC (5>: AIR .;5> SC .5%>

2( Dina'i ( Dadd!) AIR .;;> SC ..(%

22 AIR .;22 B"m .57

*; + , a e


30/37

has een approved y the +upreme ;ourt in Sita 2ai 0. #a- Chand*a!, and 2a+ant 0. Duttu!:.

In Sita 2ai+ Ca+e!9 there were two rothers 0 and % who constituted a Mitakshra coparcenary. %

died in -?2=, leaving ehind his widow +ita %ai. +ita %ai adopted < on March 4,

-?7>. 0 died on

March -2, -?7> leaving ehind an illegitimate son Lam ;handra. #he +upreme ;ourt held that <

ecame a coparcener with 0 with effect from March 4, -?7>, and therefore when 0 died on March

-2, -?7> the coparcenary passed on to < y survivorship. Lamaswami, *., who delivered the

judgment of the +upreme ;ourt did not refer to Sa,an #a-+ Ca+e& ut specifically approved

An7u+h Na*a6an+ Ca+e1 where the %omay High ;ourt allowed the adopted son to divest him of

adoptive mother s inheritance which had vested in her asolutely under +ection -4, Hindu‟

+uccession 0ctA!.

;hinnappa 5. Leddy, *., in 2a+ant 0. Dattu', said that no interest vests in a coparcener and when on

the demise of a coparcener his interest passes on to the widow y virtue of +ection 8, Hindu

+uccession 0ct that interest does not ecome a coparcener in the coparcenary now headed y her

deceased husand s rother. In this light the Lam ;handra decision is to e understood. ;hinnappa‟

5. Leddy, *., oserved

#he introduction of a memer into a joint family y irth or adoption may

have effect of decreasing the share of the rest of the memers of the joint family, ut

25 AIR .;5> SC %7%

20 AIR .;05 SC %;0

2;AIR .;25 SC .;2.

5> AIR .;25 SC .;2.

5. AIR .;22 B"m .57

5* @iwan1 ,a&a#1 M"de&n Hindu Law1 *>t) d1 A33a)abad Law Aeny1 A33a)abad1

*>>; + , a e


31/37

it clearly does not involve any )uestion of divesting any person of any estate, ut with

more memers than efore. #here is no fresh vesting or divesting of estate in anyone.C

Lejecting the argument that on the death of a memer of a joint family, the property must e

considered to have vested in the remaining memers y survivorship, the learned judge oserved that

undoutedly the property passed y survivorship, ut there is no )uestion of any vesting or divesting

in the sense contemplated y +ection -! of the Hindu 0doptions and Maintenance 0ct. In the

suse)uent decisions, the High ;ourts and the +upreme ;ourt have reaffirmed this position.

Re3ati"n#)i< "D Ad"


32/37

+ection -4 provides answers e3pressly to )uestions posed in &-(,&2(&a( and &4(&a( and provides

answers to other )uestions y implication. hat are the answers y implicationsJ #he +upreme

;ourt answers them in one way and the 0ndhra


33/37

the deceased husand. #his doule fiction did not apply in the converse case when a widower

adopted a son, the child did not ecome the adoptive son of widower$s deceased wife. It is

ovious that if a achelor adopts a son, whether under the old law or new, there is no )uestion of

the adopted child having a mother. +imilarly, if an unmarried woman adopts a child &as she can

now(, there is no )uestion of the child having a father.

Hindu law of adoption has all along taken the position that an adoption y an individual is an

adoption in the adopter$s family, therefore, the adopted child is related to the relations on his

adoptive father$s as well as adoptive mother$s side. #his is also the position in modem Hindu

law.AA %ut the relationship of the adopted child in the adopter$s family will e in accordance with

the state of adopter$s family. If a achelor or widower adopts a son, the child will have only one

side, the paternal side, and will have no maternal side. Law cannot provide a mother to the

adopted child of a achelor. :ven when a achelor marries, his spouse will e a step"parentA> to

the child. hen an 9nmarried woman adopts a son, the same is the position. 0nd it is sumitted

that the same will e the position of a divorcee &male or female( who adopts a child and then

marries. His or her new spouse will e a step"parent to the child and the e3"spouse &divorced

spouse( is not related to the child. In our sumission, the same should apply when a widow

adopts, ut in Sa4an Ram9 the +upreme ;ourt says that the deceased husand will e the

adoptive father. In A1hayv. Sarda7the 5rissa High ;ourt said that widow$s son though will also

e the same of her deceased husand, he cannot divest his adoptive mother of the property

already vested in her. In Sa4an Ram@s case property was vested in a collateral. #he Madras High

;ourt in Arumuhav. ,alliamall 8?took a contrary view. 3f oth parties are not Hindus.>-

55Seti"n .*

50Sub-#eti"n# !%$ and !7$ "D Seti"n .7

5; .;;( O&i *.*

0> !I;0>$ MLJ 7;7

0.Ni3e#)Na&in Ra8e#) La3 9 ?a#)mi&a1 AIR *>.> =u8 %

%% + , a e


34/37

!

6emale child$s right to claim maintenance.hat +ection != of the 0ct stipulates is that a Hindu

parent is liale to maintain his legitimate or illegitimate male or female children. ormally such

liaility to maintain would continue until the child attains the age of majority. +uch liaility to

maintain the child, whatever e the se3, would continue until the child attains majority whether

the child is or is not ale to maintain itself out of its earning or other property. +o far as the male

child is concerned, his right to claim maintenance would cease when he attains the age of

majority. %ut so far as the female child is concerned, such right will continue even after sheattains majority, until she gets married provided she is unale to maintain herself out of her own

earnings or other property.>2

0*Sidda&ama


35/37

+hare of adoptive son in joint family property.here ranch of the appellant on one side and

ranch of the adoptive son on the other side weir having half share each, the award of half share

to the adopted son is not proper.>4

C"n3u#i"n

#he Hindu Law of 0doption has certainly developed and evolved, coming from the ancient

concept of P+onship , and the thirteen types of adopted son mentioned in Manu, to now, as a

legal framework of much more juristic significance.

I conclude that, this evolution is continuing in nature, ut the present progress, would not have

een complete without the Hindu 0doption and Maintenance 0ct,-?78 , which has regularised

and also rationalised various concepts pertaining to 0doption, the same has also helped in

eradicating amiguity from the laws of 0doption.

;onsidered,ysome judges that the oject of adoption is two fold to secure performance of

ones funeral rites and to preserve the continuance of one$s lineage.

07Babu&a"Ma&ut&a" Mane 9 R"m)and&aBa3a#a)eb Mane1 AIR *>>( B"m %5(

%( + , a e


36/37

#he H0M0 , has steered off clearly from all the religious and sacramental aspects of adoption

and has made adoption a secular institution and secular act.

Lastly, according to me, there still are spheres where the laws can e made more stringent, clear,

and the *uristic eings have to play a pivotal role , in providing such a framework for the law od

0doption.

*i+lio#%ap,&

• Diwan, Dr.


37/37

Lucknow, !==>.

• +harma, Dr. %asant, K., Hindu Law, !nd :d., ;entral Law .

Documents

SANA Adoption