The provisions related to adoption for Hindus is codified under the Hindu Adoption and Maintenance Act, 1956. The act was a part of the Hindu Code Bill and was enacted on 21 December 1956. Besides adoption, the Hindu Adoption and Maintenance Act also deals with the issue of maintenance to children, parents and dependents. The act is broadly classified into four chapters dealing with the provisions of the maintenance and adoption.
The subject of ‘adoption’ is stated in chapter II under section 5 to 17 of the Hindu Adoption and Maintenance Act, 1956. Chapter II describes various provisions concerning the adoption by Hindu male or female including requisites of a valid adoption, persons capable of being in adoption, who may be adopted, conditions of valid adoption, effects of adoption, rights of adoptive parents and many more. One such provision is the capacity of a Hindu Female to adopt a child.
Section 8 of the Hindu Adoption and Maintenance Act, 1956 deals with the capacity of a Hindu Female to adopt a child. It states three conditions for a female Hindu to be capable to adopt a child:
- She should be of sound mind.
- She should be a major.
- She should not married, or if married, 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 is of unsound mind.
In other words, an adult Hindu female who is of sound mind and is not married has the capacity to adopt a child under this act. Further, if the Hindu female is married, then either of the following should condition should be fulfilled to become capable to adopt:
- a divorcee or
- a widower or
- Whose husband has renounced the world or
- Whose husband has ceased to be a Hindu or
- Whose husband is of unsound mind
If either of the above-mentioned conditions is fulfilled then a married Hindu female is capable to adopt a son or daughter under the Hindu Adoption and Maintenance Act.
A Hindu female who adopts a child under this act should follow certain conditions for adoption. If a son is being adopted, the adoptive mother should not have a Hindu son, grandson or great-grandson at the time of adoption. Similarly, if a daughter is being adopted, the adoptive mother should not have a Hindu daughter, granddaughter, or great-granddaughter at the time of adoption. Further, if a male child is being adopted by a Hindu female then the adoptive mother should be at least twenty-one years older than the child. These provisions are stated under section 11 of the act.
In the case of Dashrath Ramchandra Khairnar (1976)79 Bom. L.R. 426, it was held that even if the husband consented to his wife for the adoption of a son, such adoption will not be valid adoption as it will be in contradiction with section 8 of the Hindu Adoption and Maintenance Act, 1956.
In the case, Lalitha V. Union of India, A.I.R 1991 Karnataka 186, it was stated that Section 8 of the Hindu Adoption and Maintenance Act, 1956 only covers the right to adopt women who are single in status. A married woman stands outside that class. As a woman in married status falls into a different class (section 7 of the act) she cannot complain of discrimination or violation of Art. 14 of the Constitution.
- The Hindu Adoption and Maintenance Act, 1956 (No. 78), Act of Parliament, 1956.