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Adoption has been a concept among Hindus, which was more famous through the term ‘Dattak Putra’ (meaning adopted child) during ancient times. Currently, the Hindu Adoption and Maintenance Act, 1956 regulates and lays the procedure for adoption by Hindus. The Act applies to all the Hindus - Buddhist, Jaina or Sikh across India, as well as persons who are not Muslim, Christian, Parsi or Jew by religion.
For adoption under HAMA, Section 6 lays the requisites of a valid adoption:
The person adopting should have the capacity and right to adopt;
The person giving in adoption should have the capacity;
The person adopted should be capable of being adopted; and
Adoption is made in compliance with other conditions
A Hindu male can take a child in adoption if he/she is of sound mind, not a minor, capable of adopting a child, with the consent of his wife if he is married, unless the wife has completely renounced the world or ceased to be a Hindu or is a person of unsound mind.
A Hindu female can take in adoption under Hindu law if she is of sound mind, not a minor and unmarried. In case of married females, her marriage should be dissolved, or husband is dead or completely renounced the world or ceased to be a Hindu or a person of unsound mind.
Regarding who can give a child up for adoption, it has to be the father or mother or guardian of the child. The law gives the exclusive right to the father to give in adoption with the consent of the mother. In case of a mother giving a child up for adoption under HAMA, she can do the same only if the father is dead/renounced the world/ ceased to be a Hindu or of unsound mind. A guardian can give a child in adoption under Hindu law only if both the father and mother are dead or abandoned the child or both are of unsound mind.
A child who is a Hindu and has not been already adopted is eligible for adoption under Hindu law, till the age of 15 years. Such a child should not be married unless the customs allow such adoption (however, child marriage is a BIG NO under the laws).
Adopting a child is not a child’s play, and therefore, the HAMA requires several checks to be complied with. For example, while adopting a male child, a couple should not have a Hindu son, son's son or son's son's son. Same goes with a female child, that the couple should not already have a Hindu daughter or son's daughter. In addition, there has to be an age gap of at least 21 years in case of adoption by male for a female child or vice versa. To assist with such complexities, consultation with Adoption Lawyers is suggested for the prerequisites as well as preparation of adoption deed.
Once all the formalities are completed for adoption under Hindu law, the child so adopted is deemed to be the child of his/her adoptive parents for all purposes. In addition, all the ties/relations with the previous/birth family are deemed to be severed. However, there are some conditions such as
Adopted child cannot marry someone whom he could not marry if he continued in his birth family;
The property which vested in the adopted child before adoption continues to vest in such child, subject to obligation to maintain relatives, if any;
Adopted child cannot divest any person from the estate which vested in him/her before adoption.
It may be noted that adoption under Hindu law cannot be revoked. In other words, Hindu adoption has a permanent effect and cannot be cancelled.