Essentials Of Valid Adoption: Section 6 to 11 HAMA, 1956

Section 6 of the Hindu Adoption & Maintenance Act (HAMA), 1956 talks about “Requisites valid adoption”.

Essentials of valid adoptions under Section 6 HAMA, 1956 are as follows:-

(i) Person adopting shall have the capacity to adopt; (Section 7 & 8 of HAMA, 1956)

(ii) Person giving in adoption shall have the capacity to do so; (Section 9 of HAMA, 1956)

(iii) Person adopted is capable of being taken in adoption; (Section 10 of HAMA, 1956)

(iv) Other conditions given under Section 11 of the HAMA, 1956.

(i) Person adopting has the capacity to take in adopt are given under sections 7 & 8 of HAMA, 1956 when:

– Section 7 talks about the capacity of Male Hindu to take in adoption son or daughter on fulfilling following conditions:-

1. If he is Hindu;
2. If he is of sound mind;
3. If he is not a minor;
4. In case, he has a wife living, then he shall take the consent of his wife.
5. In case he has an unsound wife declared by a court or if wife has renounced the world or ceased to be Hindu, consent is not necessary.
6. In case, he has more than one wife then the consent of all wives is necessary.

– Section 8 talks about the capacity of Female Hindu to take in adoption son or daughter on fulfilling following conditions:-

1. If she is Hindu;
2. If she is of sound mind;
3. If she is not a minor;
4. In case, she has a Husband living, then she shall take the consent of her Husband.
5. In case, she has an unsound Husband declared by a court or if husband has completely & finally renounced the world or ceased to be Hindu, then consent is not necessary.

(ii) Person capable of giving in adoption is given under Section 9:-

1. Only father or mother (Does not include adoptive father, i.e., who have adopted child & again giving the child in adoption) or the guardian of a child have capacity to give child in adoption. [Sec 9(1)]
2. Father or the mother (if alive) have equal right to give a son or daughter in adoption. [Sec 9(2)]
3. Right to give in adoption cannot be exercised by either father or mother without consent of other unless one of them has completely & finally renounced the world or has ceased to be Hindu or declared unsound mind by a court of competent jurisdiction. [Sec 9(3)]
4. If father or mother of child are dead or renounced the world or abandoned child or declared unsound mind by court of competent jurisdiction or Parentage of child is unknown, then guardian can give in adoption with permission of the court. [Sec 9(4)] Also, while giving permission of adoption by the court, the court shall be satisfied that the adoption will be for the welfare of the child. [Sec 9(5)]

(iii) Person who may be adopted is given under Section 10:-

1. Child is a Hindu; [Sec 10(1)]
2. Child has not already been adopted; [Sec 10(2)]
3. Child is not married but if the custom or usage of the child’s family permits then child can be adopted; [Sec 10(3)]
4. Child has not completed age of 15 years but custom or usage permits then child can be adopted. [Sec 10(4)]

Note: A lunatic can also be adopted under the HAMA, 1956 [D. R. Patil vs. Shamgonda, AIR 1992 Bom. 189]

(iv) Other Conditions required for the valid adoptions are as follows:-

1. If adoption is of a son, then adoptive parents must not have a Hindu son, son’s son or son’s son’s son (Legitimate or Adoption) living at the time of adoption; [Sec 11(1)]
2. If adoption is of a daughter, then adoptive parents must not have a Hindu daughter or son’s daughter (Legitimate or Adoption) living at the time of adoption;
3. If adoption is by a male and the person adopted is female, then the adoptive father is at least 21-year older than the person to be adopted;
4. If adoption is by a female and the person adopted is male, then the adoptive mother is at least 21-year older than the person to be adopted;
5. The same child may not be adopted simultaneously by two or more persons;
6. There must be actual given & taken in adoption by the parents or guardian. Also, there must be an intention to transfer the child from the family of its birth to the family of its adoption.

Note: Performance of datta homam shall not be essential to the validity of an adoption.

In the case of Golak Chandra vs. Kratibas AIR 1979 Ori 205, it was held that any adoption made in derogation to the conditions laid down in Section 11 would be invalid.

In the case of L.S. Kothari vs. S.R. Kumar, AIR 1961 SC 1978, the SC said that under Hindu law the ceremony of giving & taking is essential for the valid adoption.

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