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Hindu Adoptions and Maintenance Act

The Hindu Adoptions and Maintenance Act (HAMA) was established in the year 1956 as part of the Hindu Code Bills. This act extends to the whole of India except the State of Jammu & Kashmir and applies to Hindus domiciled in our country. Hindu Adoptions and Maintenance Act was introduced to codify and standardize the current Hindu legal tradition. This act dealt specifically with 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. In this article, we look at the various aspects of the Hindu Adoptions and Maintenance Act (HAMA), 1956 in detail.

Applicability of Act

Hindu Adoptions and Maintenance Act apply to Hindus and all those considered under the umbrella term of Hindus as described below. As per the provision of this act, the following person can adopt a child in India.

• This act applies to any person who is domiciled in the territories
• 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
• A person belongs to a Buddhist, Jain or Sikh can adopt a child
• A child legitimate or illegitimate whose parents are Hindus, Buddhists, Jains or Sikhs
• A child legitimate or illegitimate one of whose parents are Hindus, Buddhists, Jains or Sikhs and has been so brought up
• An abandoned child, legitimate or illegitimate of unknown parentage brought up as a Hindu, Buddhist, etc.; and
• A person who has been converted to the Hindu, Buddhist, Jain or Sikh religion

Note: To apply the Hindu Adoptions and Maintenance Act in the territories, the person should not belongs to Muslim, Christian, Parsi, or Jew by religion

Who can Adopt a Child?

No person will be capable of being taken in adoption unless the following conditions are fulfilled

• The person should be a Hindu
• 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
• He or she has not already been adopted
• He or she has not completed the age of fifteen 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

Requisites of a Valid Adoption

Under the Hindu Adoptions and Maintenance Act (HAMA), only Hindus can adopt subject to their fulfilment of specific criteria. As per the provision of this act, no adoption will be valid unless fulfilling the following conditions:

• The person adopting should have the capacity and also the right, to take in adoption
• The person giving in adoption should have the capacity to do
• The person adopted should be capable of being taken in adoption
• The adoption should be made in compliance with the conditions of the Hindu Adoptions and Maintenance Act (HAMA)

Eligibility of a Male Hindu to Take Adoption

Under HAMA, 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.

Note: 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.

Eligibility of a Female Hindu to Take in adoption

The eligibility criteria for female Hindu to take a son or daughter in adoption are given here:

• The female Hindu should be of sound mind
• The female Hindu should not a minor
• The female Hindu who is not married can adopt a child
• 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,

Conditions for a Valid Adoption

In every adoption under Hindu Adoptions and Maintenance Act (HAMA), the following conditions must be complied with:

Adoption of a Son

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.

Adoption of a Daughter

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.

Adoption of a Female Child by a Male

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.

Adoption of a Male Child by a Female

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.

Other Conditions

• The same child cannot be adopted simultaneously by two or more persons
• 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

Effect of Adoptions

As per the provision of Hindu Adoptions and Maintenance Act (HAMA), 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

The Right of Adoptive Parents to Dispose of Property

As per HAMA, 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.

Determination of Adoptive Mother

As stated above, if a male Hindu who has a wife living adopts a child she will be deemed the adoptive mother.

• 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.
• 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.
• 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.

Rules for Giving in Adoption

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.

Rights of Father

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.

Rights of Mother

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.

Rights of Guardian

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

• In case of both the father and mother are dead
• In the case of parents are finally renounced the world
• Abandoned child
• It has been declared by a court of competent jurisdiction to be of unsound mind
• In the case of the parentage of the child is not known

Cancellation of Valid Adoption

As per the rules under the Hindu Adoptions and Maintenance Act (HAMA), 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.

Prohibition of Payments

Payments related to adoption are prohibited under the Hindu Adoptions and Maintenance Act (HAMA):

• 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.