Adoption, Custody and Parentage

By

Y.SRINIVASA RAO, PRINCIPAL SENIOR CIVIL JUDGE, TIRUPATI. M.A(English)., B.Ed., LL.M., Research Scholar in Law of Torts.

Introduction:-

Hindu Adoptions and Maintenance Act standardizes the Hindu legal tradition. A careful perusal of the provisions of this enactment, we can understand the legal process of adopting children by a Hindu adult, and with the legal obligations of a Hindu to provide maintenance to various family members.
well as Statute law maintenance of wife by her husband is a matter of personal obligation arising from the very existence of the relationship. It is independent of the possession of ancestral or self-acquired property by the husband. The right of Hindu wife of maintenance is so important that she has claim even against property in the hands of transferee from the husband. To start with, the right of maintenance and separate residence was regulated by Hindu Married Women’s Right to Separate Residence and Maintenance Act, 1946. This Act has been repealed by Hindu Adoptions and Maintenance Act, 1956.

In general sense, a man is presumed the father of a child if the child is born during a marriage or within 300 days after the marriage is terminated by death or by a judgment of nullity or marital dissolution, or after a judgment of legal separation. Of course, there are additional presumptions to that effect. In a foreign judgment, California, it was held that a married couple who contributed their own genetic material were the natural parents of the resulting child born to their chosen surrogate. See. Johnson Vs. Calvert (1993) 5 C4 84. A traditional surrogate is genetically related to the child she carries. The parental rights of the parties to traditional surrogacy agreement are not fully developed in India. In California, a man and wife (who conceived a child through IVF using donor sperm, donor egg, and a surrogate, – also known as a ”five- way” in current surrogacy parlance) were the natural parents of the resulting child because of their consent to the IVF procedure that resulted in the birth of the child.

According to the Hindu Adoptions and Maintenance Act (HAMA), no person except the father or mother or the guardian of a child will have the capacity to give the child in adoption. (i). If the father is alive, he has the right to give in adoption, but such right will not be exercised save with the consent of the mother unless the mother has completely and finally renounced the world or has ceased to be a Hindu or has been declared by the court of competent jurisdiction to be of unsound mind. (ii). The mother can give the child in adoption if the father 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. (iii). The guardian of the child can give the child in adoption with the previous permission of the court to any person including the guardian himself (i).In case of both the father and mother are dead; (ii). In the case of parents are finally renounced the world; (iii). Abandoned child; (iv). It has been declared by a court of competent jurisdiction to be of unsound mind; (v). In the case of the parentage of the child is not known.


In this essay, it is important to consider to whom this Hindu Adoptions and Maintenance Act is applicable. This Act is applicable to Hindus and all those considered under the term of Hindus. According to the provisions of this enactment, the following person can adopt a child in India. 1. This Act applies to any person who is domiciled in the territories. (It is significant to see that to apply the Hindu Adoptions and Maintenance Act in the territories, the person should not belongs to Muslim, Christian, Parsi, or Jew by religion); 2. A person who is a Hindu by religion in any of its forms or development, including the Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj; 3. A person belongs to a Buddhist, Jain or Sikh can adopt a child; 4. A child legitimate or illegitimate whose parents are Hindus, Buddhists, Jains or Sikhs; 5. A child legitimate or illegitimate one of whose parents are Hindus, Buddhists, Jains or Sikhs and has been so brought up; 6. An abandoned child, legitimate or illegitimate of unknown parentage brought up as a Hindu, Buddhist, etc.; and 7. A person who has been converted to the Hindu, Buddhist, Jain or Sikh religion.
No person will be capable of being taken in adoption unless the following conditions are fulfilled. The first contion is that the person should be a Hindu.

Secondly, the person has not been married, unless there is a custom or usage applicable to the parties which permit persons who are married being taken in adoption; Thirdly, he/she has not already been adopted; Fourthly, he/she has not completed the age of fifteen (15) years, unless there is a custom or usage applicable to the parties which permit persons who have completed the age of fifteen years being taken in adoption. Unless these essential conditions are
fulfilled, no person will be capable of being taken in adoption.


Now, it is seminal to see the requisites of a lawful and valid adoption. Under the Hindu Adoptions and Maintenance Act,1956, no adoption will be valid unless fulfilling the undermentioned conditions. 1. The person adopting should have the capacity and also the right, to take in adoption; 2. The person giving in adoption should have the capacity to do; 3. The person adopted should be capable of being taken in adoption; 4. The adoption should be made in compliance with the conditions of the Hindu Adoptions and Maintenance Act, 1956.


Under this Act, any male Hindu who is of sound mind and not a minor can take a son or a daughter in adoption. If he has a wife living, he cannot adopt a child except with the consent of his wife unless the wife has completely 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. However, it is to be notable that in case the person has more than one wife living at the time of adoption, the consent of all the wives is mandatory unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding clause. The senior wife will be classified as the legal mother of the adopted child.


The procedure to adopt a child by a Hindu female is concerned, such a Hindu female shall fulfill the following conditions. 1. The female Hindu should be of sound mind; 2. The female Hindu should not a minor; 3. The female Hindu who is not married can adopt a child; 4. In case of a married female, whose marriage has been dissolved whose husband is dead or has completely 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.


What is valid adoption?:-
In every adoption under Hindu Adoptions and Maintenance Act, the following conditions shall be fulfilled: 1. In case the adoption is of a son, the adoptive mother or father by whom the adoption is made should not have a Hindu son, son’s son or son’s son’s son living at the time of adoption. They must not have a son whether by legitimate blood relationship or by adoption; 2. If any adoption is of a daughter, the adoptive father or mother by whom the adoption is made should not have a Hindu daughter, daughter ‘s daughter or daughter‘s daughter ‘s son living at the time of adoption. They must not have a son whether by legitimate blood relationship or by adoption; 3. If the adoption is to be taken by a male and the person to be adopted is a female, the adoptive father should at least twenty-one years older than the person to be adopted; 4. If the adoption is to be taken by a female and the person to be adopted is a male, the adoptive mother should at least twenty-one years older than the person to be adopted; 5. The same child cannot be adopted simultaneously by two or more persons; 6. The child to be adopted must be provided and taken in the adoption by the parents or guardian concerned or under their authority with the intent to transfer the child from the family of its birth. In case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption.
As per the provision of Hindu Adoptions and Maintenance Act, an adopted child will be deemed the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption. From the date of adoption, all the ties of the child in the family of his or her birth will be deemed to be severed and replaced by those created by the adoption in the adoptive family.

  • The child cannot marry any person whom she or he could not have married if she or he had continued in the family of his or her birth;
  • Any property which entrusted to the adopted child before the adoption will continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to
    maintain relatives in the family of his or her birth;
  • The adopted child will not divest any person of any estate which vested in him or her before the adoption
    As per Hindu Adoptions and Maintenance Act, any agreement to the contrary, an adoption does not dispossess the adoptive father or mother has completely 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. However, it is to be notable that in case the person has more than one wife living at the time of adoption, the consent of all the wives is mandatory unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding clause. The senior wife will be classified as the legal mother of the adopted child.
  • The procedure to adopt a child by a Hindu female is concerned, such a Hindu female shall fulfill the following conditions. 1. The female Hindu should be of sound mind; 2. The female Hindu should not a minor; 3. The female Hindu who is not married can adopt a child; 4. In case of a married female, whose marriage has been dissolved whose husband is dead or has completely 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.
    What is valid adoption?:- In every adoption under Hindu Adoptions and Maintenance Act, the following conditions shall be fulfilled: 1. In case the adoption is of a son, the adoptive mother or father by whom the adoption is made should not have a Hindu son, son’s son or son’s son’s son living at the time of adoption. They must not have a son whether by legitimate blood relationship or by adoption; 2. If any adoption is of a daughter, the adoptive father or mother by whom the adoption is made should not have a Hindu daughter, daughter ‘s daughter or daughter‘s daughter ‘s son living at the time of adoption. They must not have a son whether by legitimate blood relationship or by adoption; 3. If the adoption is to be taken by a male and the person to be adopted is a female, the adoptive father should at least twenty-one years older than the person to be adopted; 4. If the adoption is to be taken by a female and the person to be adopted is a male, the adoptive mother should at least twenty-one years older than the person to be adopted; 5. The same child cannot be adopted simultaneously by two or more persons; 6. The child to be adopted must be provided and taken in the adoption by the parents or guardian concerned or under their authority with the intent to transfer the child from the family of its birth. In case of an abandoned child or a child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption.
  • As per the provision of Hindu Adoptions and Maintenance Act, an adopted child will be deemed the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption. From the date of adoption, all the ties of the child in the family of his or her birth will be deemed to be severed and replaced by those created by the adoption in the adoptive family.
  • The child cannot marry any person whom she or he could not have married if she or he had continued in the family of his or her birth;
  • Any property which entrusted to the adopted child before the adoption will continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to
    maintain relatives in the family of his or her birth;
  • The adopted child will not divest any person of any estate which vested in him or her before the adoption
    As per Hindu Adoptions and Maintenance Act, any agreement to the contrary, an adoption does not dispossess the adoptive father or mother of the power to dispose of his or her property by transfer inter vivo or by will. As stated above, if a male Hindu who has a wife living adopts a child she will be deemed the adoptive mother. 1. In case of adoption has been made with the consent of more than one wife, the senior most in marriage among them will be deemed to be the adoptive mother and the others to be stepmothers; 2. In case a widower or a bachelor adopts a child, any wife whom he subsequently marries will be deemed the stepmother of the adopted child; 3. If a widow or an unmarried woman adopts a child, any husband whom she marries consequently will be considered to the stepfather of the adopted child.
  • In Rajiv Bhatia etc. Vs. Government of NCT of Delhi and others – 2000 (1) ALT(CRI.)(SC) 63 ( D.B. ) , the Hon’ble Supreme Court rejected the plea of adoptive father that the girl was given to him in adoption under a Registered adoption deed. Custody of the girl child was given to natural mother.


Custody and Parentage :-
In fact, custody is when a person or entityis responsible for the care and well-being of a child and has the legal authority to consent on behalf of the child, but the child’s parents maintain their parental rights whereas adoption is the process by which an adult becomes the permanent, legal
parent of a child.


As far as the law on the question of granting custody of the minor child is concerned, the Courts have time and again held that the paramount consideration should be the welfare of the minor. As was held in Manchala Hushikesh vs. Terala Pradeep Kumar and others – 2001 (3) ALT 212 ( D.B. ),welfare of the wards is the paramount consideration while directing return of wards to the custody of their guardian. The same view was expressed in Sathi Jagannadha Reddy Vs. Kovvuri Rukmini (died) per L.Rs. – 1998 (4) ALT 158 ( D.B. ).


The legal controversy lies in a narrow compass namely whether the petitioner who is the natural father of the wards is entitled to the custody of the wards under the provisions of the Guardian and Wards Act, 1890, to decide the same it is expedient to examine the relevant provisions of the Act. The relevant provision is Sections 17 and 19 of the Act. Section 17 provides for matters to be considered by the Court in appointing guardian and while Section 19 deals with guardians not to be appointed in certain cases.


The issue relating to this aspect was considered by the Apex Court in Rosy Jacob vs. Jacob A. Chakramakkal – (1973) 1 SCC 840. The Supreme Court in this case had held that from a perusal of Section 25 of the Act, it is clear that it is attracted only if a ward leaves or is removed from the custody of a guardian of his person and the Court is empowered to make an order for the return of the ward to his guardian if it is of the opinion that it will be for the welfare of the ward to return to the custody of his guardian. The Court is entrusted with a judicial discretion to order return of the ward to the custody of his guardian, if it forms an opinion that such return is for the ward’s welfare. The use of the words ‘ward’ and ‘guardian’ leaves little doubt that it is the guardian who, having the care of the person of his ward, has been deprived of the same and is in the capacity of guardian entitled to the custody of such ward, that can seek the assistance of the Court for the return of his ward to his custody. The guardian contemplated by this Section includes every kind of guardian known to law. The Supreme Court in that judgment has further held as under:
‘Section 25 of the Guardians and Wards Act contemplates not only actual

physical custody but also constructive custody of the guardian which term includes all categories of the guardians. The object and purpose of this provision being ex facie to ensure the welfare of the minor ward, which necessarily involves due protection of the right of his guardian to properly look after the ward’s health, maintenance and education, this section demands reasonably liberal interpretation so as to effectuate that object. Hyper-technicalities should not be allowed to deprive the guardian, the necessary assistance from the Court in effectively discharging his duties and obligations towards his ward so as to promote the latter’s welfare.
……………
The Court’s power under Section 25 of the Guardians and Wards Act is to be governed primarily by the consideration of the welfare of the minors concerned. The discretion vested in the Court is, as is the case with all judicial discretions to be exercised judiciously in the background of all the relevant facts and circumstances. Each case has to be decided to its own facts and other cases can hardly serve as binding precedents, the facts of two cases in this respect being seldom-if ever identical.
………..
In considering the question of the welfare of minors due regard has of course to be paid to the right of the father to be the guardian and also to all other relevant factors having a bearing on the minor’s welfare. There is a presumption that a minor’s parents would do their very best to promote the children’s welfare and, if necessary, would not grudge any sacrifice of their own personal interest and pleasure. This presumption arises because of the natural, selfless affection normally expected from the parents for their children….


Where there is no dichotomy between the fitness of the father to be entrusted with the custody of his minor children and considerations of their welfare, the father’s fitness has to be considered, determined and weighed predominantly in terms of the welfare of his minor children in the context of all the relevant circumstances, if the custody of the father cannot promote their welfare equally or better than the custody of the mother, then, he cannot claim indefeasible right to their custody under Section 25 merely because there is no defect in his personal character and he has attachment for his children which every normal parent has’.


From the above, in Manchala Hushikesh vs. Terala Pradeep Kumar and others -2001 (3) ALT 212 ( D.B. ), it was held that it is clear that the father is the guardian of the minor until he is found unfit to be the guardian of the minor. The welfare of the minor is paramount consideration while ordering their custody. In view of the Section 25 of the Act, the onus is on the person who opposes the application by a guardian for the custody of a ward under this section to make out that the welfare of the ward be better served by its being kept out of the custody of its guardian and retained in the custody of the person against whom the application is made. This onus is particularly heavy when the guardian is the father of the child. Likewise, under Section 19 the burden of proof to deny the natural father the custody of his child would be very heavy to establish his unfitness and the Court will require very strong reasons for interference with the father’s right to custody.
In K. Krishnaprasada Rao Vs. K. Jayashree &Others. – 1985 (1) ALT(NRC) 58.2 ( D.B. ), it was held that in view of sub-section (3) of Section 20 of the Hindu Adoptions and Maintenance Act, 1956, the parent is under an obligation to maintain the unmarried daughter regardless of age so long she is unable to maintain herself out of her

earnings or property. Hence subject to the limitation imposed under sub- section (3) the parent is bound to maintain the unmarried daughter even after she attains majority. Even assuming that a child is refractory or stubborn either tempermentally or due to surrounding circumstances it cannot be deprived of the right of maintenance by the parent on the ground of disobedience or not submitting to his custody at care. It is the duty of the parents to make the surrounding circumstances congenial so that there may not be any room for complaint on behalf of the child. The absolute obligation to maintain the child cannot be circumvented on the ground that such duty arises only if the child surrenders to the protection and care of the parent. The word ‘incident’ occurring in Section 3 (h) of the Act also partakes the character of expenses of the marriage. The Pasupu Kumkuma gift cannot constitute an incident of marriage expenses and consequently comes within the definition of maintenance within the meaning of Section 3 (b). Such claim for gift c inn It b.! enforced as maintenance due and payable.
Further, under Section 20 of the Hindu adoptions and Maintenance Act a Hindu father is bound to maintain his legitimate and illegitimate children.See. S. Yellamma and others v. S. Anjaneyulu and another – 2003 (3) ALT 530.
Conclusion:- Under the Hindu Adoptions & Maintenance Act, 1956 it is the obligation of a person to maintain his unmarried daughter if she is unable to maintain herself. See. Smt. Jasbir Kaur Sehgal Appellant. vs. District Judge, Dehradun and others Respondents. – 1997 (5) ALT(SC) 25 ( D.B. ). Regarding ante-adoption agreements are concerned, in Pachigollu Venkata Rao and others Vs. Palepu Venkateswara Rao – 1955 (1) ALT(NRC) 82 ( D.B. ), it was held that Ante-adoption agreements should not extend to anything other than the regulation of the rights of the widow in the property and the sanction to it is based on custom. An arrangement cutting down the rights of the adopted son to a life estate is not valid. As per the rules under the Hindu Adoptions and Maintenance Act, the adoptive father or mother or any by another person cannot cancel the strong adoption. , The valid adoption may be annulled if the adopted child renounces his or her status as such and return to the family of his or her birth. Payments related to adoption are prohibited under the Hindu Adoptions and Maintenance Act. No person can receive or agree to receive any payment or rewards in consideration of the adoption of any person. No person can make or agree to give any payment or reward to any other person the receipt of which is prohibited by this section. If any person contravenes the provisions of this section, he/she will be punishable with imprisonment, which may extend to six months or with fine or with both. No prosecution under this section will be instituted without the previous sanction of the State Government or an officer authorised by the State Government in this behalf.
To conclude this article, it is suffice to say that legal adoption occurs when both biological parentsgive up their parental rights to a non- biological parent or parents. Custody rights over a child can be either legal custody, physical custody or both. These rights may be held by biological parents, third parties or a state welfare agency.

Hindu Law

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