Adoption is a process of legally taking a child to be taken care of as your own. The practice of adoption is age old in India. However, the objective of adoption of a child has changed over a period of time. The matter of adoption falls under the umbrella of family law issues. In India, the personal laws of most religions including Islam, Christianity, Parsi, Jews doesn’t permit adoption and thus, has no separate legislation regarding the same. However, the provisions of adoption by Hindus are codified under the Hindu Adoption and Maintenance Act, 1956. The act was passed with the aim of providing better and clear laws concerning adoption and maintenance. The Hindu Adoption and Maintenance Act, 1956 deals with adoption in chapter II of the act. It mentions various provisions including what are the conditions to be fulfilled for adoption of a son.
There are certain conditions for who may adopt a child under the aforementioned act. Section 11 of the Hindu Adoption and Maintenance, 1956 describes other conditions for a valid adoption under which the condition for adoption of a son is stated. The section 11(1), in regard to the adoption of a son states that “ if any 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 blood relationship or by adoption) living at the time of adoption”. In other words, a Hindu who already has a son, grandson or great-grandson cannot adopt a son under this act. Further, section 11(4) mentions that if a son is adopted by a female then the adoptive mother is at least twenty-one years older than the person to be adopted. To substantiate, a Hindu female of 25 years cannot adopt a son less than five years of age as per this section.
The Lahore High Court In re, Divi Ditto, AIR 1931 Lah 661, held that where the personal law of the parties permits adoption, the word “son” will include an adopted son.
In Smt Sitabai and another v. Ramchandra, the Supreme Court held that when a question arises what is the adoptive family of a child who is adopted by a widow, or by a married woman whose husband has completely and finally renounced the world or has been declared to be of unsound mind even though alive. The child adopted by her must belong to the family of the said husband.
- The Hindu Adoption and Maintenance Act, 1956 (No. 78), Act of Parliament, 1956.