Adoption is so widely recognised in India. Most of you must have witnessed adoption of children amongst close relatives or people adopting from orphanages etc. Though, adoption sounds like just parenting a kid who is not biologically yours, it is strictly governed by the law.

It is very important to know the adoption laws because any adoption done without following the law is void and such adoption does not give the adoptive parents any right and also does not take away rights from the child that has been adopted, in his/her birth family. 

In this post we will discuss the Hindu Adoptions and Maintenance Act, 1956 (‘HAMA’) which governs adoptions by Hindu, Buddhist, Jaina or Sikh. 

[The act provides explanation of persons who are Hindu, Buddhist, Jaina or Sikh by religion. In this post, we are not going into the details of determination of religion. If you have queries/questions regarding that, you can write to us.]

Reference of the term ‘hindu’ throughout the post will include hindus, buddhists, Jainas and Sikhs. 

Requisites of a valid adoption

A valid adoption is an adoption wherein – 

  1. the person adopting has the capacity, and also the right, to take in adoption; 
  2. the person giving in adoption has the capacity to do so; 
  3. the person adopted is capable of being taken in adoption; and 
  4. the adoption is made in compliance with the other conditions under law. 

Only when the aforesaid four criteria are fulfilled, an adoption can be said to be a valid adoption. 

Let us now examine the aforesaid four criteria one by one, in detail. 

Who can adopt

As per law, any person who wants to adopt a child must be of a sound mind and a major. 

  1. If a Male wants to adopt – As per the law, a male can adopt a female or a male child. If he adopts a female child, the age gap between the adoptive father and the female child must be at least twenty-one years. 

In case, such male person has a wife, he will have to take consent of his wife before adopting a child. If he has more than one wife, then he will have to take consent of all his wives. 

The wife’s/wives’ permission is not required in the following circumstances- 

    • If she has completely and finally renounced the world; or 
    • has ceased to be a Hindu; or 
    • has been declared by a court of competent jurisdiction to be of unsound mind. 
  1. If a female wants to adopt – as per the law, an unmarried woman can adopt a child (male or female) and a married woman, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind, can adopt a child (male or female). If she adopts a male child the age gap between her (being the adoptive mother) and the child should be at least twenty-one years.

Who can give in adoption 

Father, mother and guardian of a child have the capacity to give the child in adoption. 

  1. When and how can a father give his child for adoption?

Preference is given to the father of the child, to give the child for adoption. If the father of the child is alive, then he alone has the right to give the child in adoption after taking consent of the child’s mother. Consent of the mother is not required in the following circumstances- 

    • If the the mother has completely and finally renounced the world; or 
    • has ceased to be a Hindu; or
    • has been declared by a court of competent jurisdiction to be of unsound mind.

Note – An adoptive father (who has adopted the child) cannot give the child in adoption. 

2. When can a mother give her child for adoption?

The mother of the child can give the child in adoption in the following circumstances – 

    • If the father of the child is dead; or 
    • has completely and finally renounced the world; or 
    • has ceased to be a Hindu; or 
    • has been declared by a court of competent jurisdiction to be of unsound mind. 

Note – An adoptive mother (who has adopted the child)cannot give the child in adoption.

3. When and how can a guardian give a child for adoption?

As per the law a guardian has been defined as a person having the care of the person of a child or of both his person and property and includes a guardian appointed by will of the child’s father or mother; and a guardian appointed or declared by a court. 

A guardian can give the child for adoption after taking permission of the court in the following circumstances- 

    • If both the father and mother are dead; or 
    • have completely and finally renounced the world; or 
    • have abandoned the child; or 
    • have been declared by a court of competent jurisdiction to be of unsound mind; or 
    • where the parentage of the child is not known. 

It is an interesting fact that the guardian can also himself adopt the child. 

Who can be adopted 

A person can be adopted if all the following criteria are fulfilled- 

  • he or she is a Hindu;
  • he or she has not already been adopted; 
  • he or she has not been married, except for adoption in cases where a  custom or usage applicable to the parties permits persons who are married being taken in adoption; 
  • he or she has not completed the age of fifteen years, except for adoption in cases where a custom or usage applicable to the parties permits persons who have completed the age of fifteen years being taken in adoption. 

Other conditions 

There are several other conditions that should be complied with in every case for a valid adoption. The following are those conditions – 

  1. if a male/son is adopted, the adoptive father or mother by whom the adoption is made must not have a Hindu son, grand son or grand grandson [whether by legitimate blood relationship or by adoption] living at the time of adoption; 
  2. if a female/daughter is adopted, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or grand daughter (son’s daughter)[whether by legitimate blood relationship or by adoption] living at the time of adoption; 
  3. the same child must not be adopted simultaneously by two or more persons; 

Note: This Article provides an outline of the law. If you have specific queries or questions, please feel free to DM on instagram or email on billablesbeyond@gmail.com