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Changed Position of Adoption under Hindu Law

In Hindu philosophy, the legitimate son is given a pertinent position to get spiritual benefit as well as to continue the family. In earlier times, it was a must for every Hindu to have a son but nowadays the position has changed and daughters are too on the way to be on the same pedestal as sons.

Having a child is imperative to continue the family but in case there is any imperfection in any one of the partners that makes it impossible to give birth to the child, the family takes a child in adoption to make the family complete. Adoption is a process in which one family legally takes the child of another family and brings him up as their own child and takes proper care of the child as their own child.

As there is no specific definition for adoption, the Black's Law Dictionary defines adoption as, "the act of one who takes another's child into his/ her own family, treating him/ her as his or her own, and giving him or her all the rights and duties of his own child".

In the Hindu, law adoption is allowed even before codification. The adoption was a much more sort of conservative type before the codification of the laws but the codification gave it a new look and the approach and ceremonies that used to be there in the old law were made optional and not mandatory to follow but some conditions were introduced that must be complied with by the adopting family.

This paper is concerned with the change in the position of adoption and how the Hindu Adoption and Maintenance Act and the amendment in 2010 have made some major changes by scraping the religious motive underlying the adoption and giving the wife equal rights regarding adoption.

Position In Old Hindu Law And Hindu Adoption And Maintenance Act 1956

Earlier in the old Hindu law, the adoption is subjected to the performance of certain mandatory religious-like "Duttaka Homa[1]" and only boys can be taken into adoption and there wasn't any provision that dealt with the adoption of daughters. Even in this process, there are certain restrictions like any adoption of a son shall be from the same caste and not from any outsider. In toto, it can be said that the law was not at all uniform and there exist conflicts regarding the consistency of the law regarding adoption.

However, the Hindu Adoption and Maintenance Act, 1956 brought some major changes to the adoption under Hindu Law. It was more of a secular and comprehensive enactment. Earlier the religious ceremonies were essential for the valid adoption but this amendment did not make the performance of religious ceremonies mandatory but merely emphasized the ceremony of giving and taking.

It brought the equality of status of son and daughter as it also provided for the adoption of daughter unlike the old Hindu law, but there is a restriction that the adopted daughter cannot offer funeral cake nor she is allowed to perform the last rites of the deceased. The main object of adoption is considered to secure performance of the funeral rights and to preserve the continuance of one's lineage.[2]

Acknowledgment Of Wife's Right To Adoption

The old Hindu didn't give any right to the wife in regards to the adoption of a child and nor was there any need for her consent to adopt a child if the father desires so. But in the HAMA, the rights of the wife are well recognized and the wife is also allowed to take the adoption.

Section 7 provides the capacity of the male Hindu to take in adoption and along with it in the proviso, it is stated that the father must adopt the child by taking the consent of his wife. The consent of the wife is made mandatory through this enactment if there is any contravention the adoption would be considered invalid.

However, the consent can be dispensed if the wife:
  • Renounces the World
  • Ceases to be a Hindu
  • Becomes Mentally Unsound

Further, the aberration from the old Hindu law can be seen in the HAMA, as it provides a separate section dealing with the capacity of the wife to take in adoption. Section 8 has made a substantial change as in the old law the wife was not allowed to take the adoption during the lifetime of the husband without his consent.

However, even when she takes in the adoption, she merely acts on behalf of his husband. The wife was not given the right to adopt during the continuance of marriage, but she is allowed to adopt when her husband is suffering from any disabilities.

In the case of Sitabai v. Ramachandra[3], it was observed that the wife cannot adopt a child during the subsistence of the marriage but she becomes eligible only on the disabilities of the husband but if there is no such disqualification the wife cannot adopt on her own even with the consent of the husband.

However, the position was changed after the amendment in 2010 that gave the wife equal rights to adopt a child as it is given to the husband. However, the wife can adopt a child only after taking the consent of her husband. The consent of her husband can be done away with if he renounces the world, ceases to be Hindu, or is declared as a person of unsound mind by the competent court.

Moreover, in the process of giving in adoption in the old law, the father was given the preferential right but after the 2010 amendment they are put on the same pedestal and now the wife and the husband have equal rights to give in adoption but it should be done consent of the other spouse is necessary.

The process and the procedures involved in taking and giving in the adoption have changed with time. There have been many changes in the adoption, especially concerning the ceremonies, religious aspects as well as the right of the wife in the whole adoption process. The old Hindu law was sort of conservative as it didn't allow the adoption of a daughter and it also didn't allow the wife to adopt a child till the subsistence of her marriage without the consent of her husband.

However, HAMA and the amendment in 2010 has brought many positive changes in adoption by giving equal right to the wife and husband, allowing the adoption of daughters, secular, as well as making the whole procedure of the adoption uniform.

  • Dr. Paras Diwan, Modern Hindu Law (25th ed. 2021).
  • Inder Singh v. Kartar Singh, AIR 1966 Punj. 258.
  • Law Times Journal, (last visited Aug. 25, 2022).
  1. It's a major religious ceremony among the Hindus for valid adoption.
  2. Inder Singh v. Kartar Singh, AIR 1966 Punj. 258.
  3. (1969) 2 SCC 544.
  • Dr. Paras Diwan, Modern Hindu Law (25th ed. 2021).
  • Inder Singh v. Kartar Singh, AIR 1966 Punj. 258.
  • Law Times Journal, (last visited Aug. 25, 2022).
  1. It's a major religious ceremony among the Hindus for valid adoption.
  2. Inder Singh v. Kartar Singh, AIR 1966 Punj. 258.
  3. (1969) 2 SCC 544.

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