Adoption is the legal procedure through which an adopted kid becomes the legal child of his adoptive parents, with all of the rights, privileges, and duties that a biological child has. It is an amazing concept that fulfils the interest of both parents and child. The concept of adoption among Hindus exist since ancient times. Post-independence reforms were brought and the Hindu Adoptions and Maintenance Act (herein referred as HAMA), 1956 was enacted which allowed any person who comes under the definition of Hindu under Section 2 to be eligible for adoption.
Adoption is still not legally recognised in the personal laws of various religion including Islam, Christianity. There the idea of guardianship is acknowledged but not considering the child as their own, which means the concerned child can’t claim any legal rights. But later, to fill the deficient holes another step was taken by the government by introducing a reformative law known as the Juvenile Justice Act, 2015 repealing the Act of 2000 where any person belonging to any religion can apply for the adoption of an orphan, abandoned or surrendered child.
WHO CAN ADOPT:
Under Hindu Personal law, right of a Hindu male to adopt a child is given under Section 7 and the right of Hindu female is given under Section 8.
According to it any Hindu male or female who is not a minor and of sound mind wit the consent of their spouse can adopt either a son or a daughter.
Under Juvenile Justice Act, 2015: Regulation 5 of the CARA Guidelines deals with the eligibility criteria of the prospective adoptive parents-
- The prospective adoptive parents shall be physically, mentally, emotionally and financially capable, they shall not have any life-threatening medical condition and they should not have been convicted in criminal act of any nature or accused in any case of child rights violation.
- It also states that the consent of the other spouse is important like the HAMA and the couple should have a stable relationship for a period of 2 years.
- A single Hindu male ca not adopt a daughter however a single Hindu female can adopt a child of any gender.
RIGHTS OF AN ADOPTED CHILD FROM VALID ADOPTION:
Primarily Section 8 of The Hindu Succession Act, 1956 which deals with general rules of succession in case of males talks about heirs and doesn’t include any distinction between a natural heir and an adopted heir. The same goes with Section 15 which states the general rules for succession in case of female Hindus. This means that The Hindu Succession Act, 1956 does not differentiate between natural and adoptive children and thus gives equal right to both of them.
Section 12 deals with the effects of valid adoption both to the adoptive parents and the adopted child. When there is valid adoption, the child is deemed to die in the natural family, and to be reborn in the adoptive family. The rights and liabilities of the adoptive child are severed from the birth family and the child enjoys the rights and render the liability of the adoptive family. The adopted child is deemed to be a natural son. Under Shastric Hindu law, an adopted son was considered as good as the son begotten from the lawful wedlock by birth, ‘Putrachyavaham’, means that reflection of the Aurasa (legitimate) son.
In the landmark case of Hirabai and Anr. v Babu Manike Ingale the Hon’ble court held that the adopted child loses all his rights in the family of his birth and those rights are replaced by the rights created by the adoption in the adoptive family. The right, which the child had, to succeed to property by virtue of being the son of his natural father, in the family of his birth, is, thus, clearly to be replaced by similar rights in the -adoptive family.
Devolution of property before adoption:
Proviso (b) to Section 12 states that any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property including the obligations to maintain relatives in the family of his birth. In the landmark case of Sharad Chand v Shanta Bai the Hon’ble court held that any property that the child inherited from any relation before the partition will continue to be his property even after adoption.
Devolution of property after adoption:
In Yarlagadda Nayudamma v The Government of Andhra Pradesh, rep. By the Authorised officer, Land Reforms, Ongole, the court ruled that ‘A coparcener does not have exclusive rights on any specific property of the family. All the coparceners enjoy the ancestral property jointly. The right to interest changes from time to time depending on additions or deletions of coparceners. It acquires a concrete shape only when partition opens.’ Therefore, it is beyond pale of doubt that on adoption by another family, the adoptee becomes coparcener of adoptive family and ceases to have any connection with family of his birth.
RIGHTS OF AN ADOPTED CHILD ADOPTED BY A WIDOW:
The rights of an adopted child are generally the same regardless of the marital status of the adoptive parent. When a child is adopted by a widow, the child typically gains the same legal rights and status as if adopted by a married couple. It is assumed that the adoption of the child took place just prior to the death of the husband and thus enjoys legal rights with respect to the property in the family.
In the case of Dharma Shamrao Agalawe v Pandurang Miragu Agalawe the court held that the joint family property does not cease to be so when it passes to the hands of the sole surviving coparcener. If the son is born to the sole surviving coparcener, the said properties become the joint family properties in his hands and in the hands of the son. If a son is subsequently born to adopted by a sole surviving coparcener or a new coparcener is inducted into the family on adoption made by the widow of the deceased coparcener, an alienation made by the sole surviving coparcener before the birth of the new coparcener or the induction by way of adoption into the family whether by way of mortgage, sale or by gift would however stand and the adopted child or the new born cannot object to the same. However, for the rest of the property will be devolved according to the provision of the Act, and the adopted child will get his due share.
It seems that a coparcener widow adopts a son, he becomes a coparcener in the joint family. In Ankush Narayan v Janabai Desai the court remarked that the adopted son of widow of a coparcener will also become coparceners with the surviving coparceners of her husband. This view was upheld by the Supreme Court in Sita Bai v Ram Chandra and Vasant v Dattu.
CONCLUSION:
In general, adopted children have rights that are similar to those of biological children, especially when it comes to inheritance and property. The adopted child becomes a legal heir with the right to inherit from their adoptive parents once the adoption procedure is legally completed.
This implies that, similar to biological children, the adopted kid is entitled to an equal portion of the adoptive parents’ assets in the event of their death. The legal intent is to establish a genuine familial relationship, including financial and property-related aspects.
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