Legal Writing: Adoption

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Definition.—

Adoption has been appropriately described as transplantation of a son from the family of his natural parents to another family by the mutual consent of the adopting parents and the natural parents.

Who can Adopt?

Adoption by males.—

Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter, in adoption:
Provided that, if he has a wife living, he shall not adopt except—with the consent of his wife, unless—
(i) the wife has completely and finally renounced the world;
(ii) has ceased to be Hindu; or
(iii) has been declared by a Court of competent jurisdiction to be of unsound mind.
If a person has more than one wife living, at the time of adoption, the consent of all the wives is necessary unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding proviso. (Section 7, Hindu Adoption and Maintenance Act, 1956).

Adoption by females.—Any female Hindu—

(i) who is of sound mind,
(ii) who is not a minor, and
(iii) who is not married, or if married, whose marriage has been dissolved, or
(iv) whose husband is dead, or has completely and finally renounced the world; or
(v) whose husband has ceased to be a Hindu; or has been declared by a Court of competent jurisdiction to be of unsound mind,
has the capacity to take a child be a son or a daughter in adoption (Section 8, of the Hindu Adoption and Maintenance Act).

Who can give in Adoption?

1. No person except the father or tin-mother or the guardian of a child has the capacity to give the cluld m adoption.

2. The father, if alive, shall alone have the right to give in adoption but he can do so only with the consent of the mother if she is alive, unless the mother —

(i) has completely and finally renounced the world, or
(ii) has ceased to be a Hindu, or
(iii) has been declared by a Court of competent jurisdiction to be of unsound mind.

1. The mother may give the child in adoption if the father —
   (i) is dead; or
   (ii) has completely and finally renounced the world; or
   (iii) has ceased to be a Hindu; or
   (iv) has been declared by a Court of competent jurisdiction to be of unsound mind.

2. (a) Where both father and mother —
   (i) are dead; or
   (ii) have completely or finally renounced the world; or
   (iii) have ceased to be a Hindu; or
   (iv) have been declared by a court of competent jurisdiction to be of unsound mind; or
   (v) have abandoned the child;

(b) where the parentage of the child is not known — the guardian of the child may give the child in adoption with the previous permission of the Court to any person including the guardian himself. The guardian here means the testamentary guardian or a guardian appointed by a court of competent jurisdiction.

Who may be adopted? No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely —
(i) he or she is a Hindu;
(ii) he or she has not already been adopted;
(iii) he or she has not been married, unless there is a custom or usage applicable to the parties, which permits persons married, being taken in adoption.
(iv) he or she has not completed the age of fifteen years unless there is custom or usage applicable to the parties, which permits persons who have completed the age of fifteen years being taken in adoption (Section 10, Hindu Adoption and Maintenance Act.)

Essentials of valid Adoption

(i) If the adoption is of a son, the adoptive father or mother by whom the adoption is made, must not have a Hindu son, son's son or son's son's son (whether by legitimate relationship or by adoption) living at the time of adoption;
(ii) If the adoption is of a daughter, the adoptive father or mother by whom the adoption is made, must not have a Hindu daughter, or son's daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;
(iii) If the adoption is by a male and the person to be adopted is a female, the adoptive father should be at least 21 years older than the person to be adopted.
(iv) If the adoption is by a female, and the person to be adopted is a male, the adoptive mother should be at least 21 years older than the person to be adopted.
(v) The same child may not be adopted simultaneously by two or more persons.
(vi) The child to be adopted must be actually given and taken in adoption by the parents or guardians concerned or under their authority with intent to transfer the child from the family of its birth (or as the case of an abandoned child or a child whose parentage is not known, from the place or family where the child has been brought up) to the family of the child's adoption:

Provided that the performance of datta homam shall not be essential to the validity of an adoption.

Effects of Adoption.—

An adopted child shall be deemed to be ihc child of his or her adoptive father or mother for all purposes will) Him from the date of the adoption, and from that date 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 the adoption in the adoptive family:

Provided that—
(a) The child cannot marry any person whom he or she could not have married, if he or she had continued in the family of his or her birth;
(b) any property which vested in the adopted child before the adoption, shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property including the obligations to maintain relatives in the family of his or her birth;
(c) The adopted child shall not divest any person of any estate which vested in him or her before the adoption.

Attestation.—

Deed of adoption must be executed by the person giving in adoption and the person taking in adoption and must be clearly attested as bonds.

Registration.—

A deed of adoption is not required to be registered compulsorily. Section 29-A of the Oudh Estates Act, 1869, however, lays down that the adoption made by a person to whom this Act is applicable, must have been declared in writing and attested like other wills and also registered. In all other cases it has been provided in Section 16 of the Hindu Adoption and Maintenance Act, 1956, that a duly registered deed of adoption shall be presumed to have been executed according to the provisions of the aforesaid Act.
Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered.

Stamp-duty.—

Stamp-duty is chargeable on the adoption deed under Article 3 of Schedule I to the Stamp Act.