Adoption

Daughter given in marriage- kanyadan Son given in adoption- putradan Both are in the nature of a sacred gift Both are gifts for religious and secular purposes.

12 kinds of sons Aurasputra- son born to the wife begotten by the husband himself; Kshetrajaputra- son by a lawfully appointed person to the wife; Dattaputra-son gifted by other parents; Kritrimaputra- son adopted who was orphan; Gudhaja- A son born in the family but as to who begot him being unknown; Apaviddhaputra- son brought up who has been rejected by the original parent/s;

Kaninaputra- Son born to a virgin girl before marriage; Sahodhaputra- son whose mother was pregnant during marriage; Kritakaputra- son purchased; Paunarbhavaputra- son born to a woman after becoming widow/ left by the husband; Swaymdattaputra- son(orphan) willingly remains with other parent/s. Saudraputra/paarashavaputra- son of a Brahmin of his Shudra wife.

Twofold objects of adoption First, religious- to secure spiritual benefit to the adopter and his ancestors by having a son. Second, secular- To secure an heir and perpetuate the adopter’s name.

Observation of the Privy Council and the Supreme Court of India : “The validity of an adoption is to be determined by spiritual rather than temporal considerations and that devolution of property is only of secondary importance” Chandrasekhara v. Kulandaivelu(1963) Narayan v. Nana (1870)

Requirements The person adopting is lawfully capable of taking in adoption; The person giving in adoption is lawfully capable of giving in adoption; The person adopted is lawfully capable of being taken in adoption; The adoption is completed by actual giving and taking; and The ceremony called datta homam has been performed.

Who can adopt Every competent male may adopt; Wife can adopt to her husband, no other female; A wife cannot adopt during husband’s lifetime except with express consent; After his death she can, if expressly authorized. Wife or widow cannot adopt to herself. Pratigrihitrimata (adopted mother in joint adoption)- but the adoption is to the husband.

Adoption by male Every Hindu male can adopt if he The fact that- is of sound mind; and has attained the age of discretion*; and has no son, grandson, or great-grandson, natural or adopted. The fact that- the adopter is a bachelor, or widower; his wife doesn’t consent , or she is pregnant does not prevent him from taking a son in adoption. *The Majority Act does not apply to Hindus in adoption. Age of discretion- 15 years{Sattiraju v. Venkataswami(1917)}

Authority of females Wife- cannot- except express consent; Unmarried woman- no; Widow- Mithila- not at all- even if authorized by the husband; Bengal, Benares and Madras- can, if authorized; Madras- can, even without husband’s authority if she obtains the consent of- sapindas, where the husbands were separate during death; or undivided coparceners, if he was joint. Bombay, yes, even without any authority.

Nature of authority Authority may be given to the widow alone. Co-widows- only to one of them only. It may be verbal or in writing; If written- must be registered unless under a will; Will- must be executed under the Succession Act- 1925, sect. 63. It may be conditional- condition must not be illegal; Authority must be strictly followed; Exercise of the authority is discretionary, no time limit. Authority may be revoked.

Who can give in adoption Father Yes Mother No, if the father is alive and capable of consenting Yes, with his permission Yes, if he has become incapable of consenting Brother No Step-mother Grandfather The power belongs exclusively to the parents They must have the age of discretion and must be of sound mind.

Who may be adopted A person to be adopted must be - a Hindu; a male; of the same caste of his adopting father; a boy whose mother the adopting father could have legally married; not a deaf or dumb not a sanyasi before upanayana, in Bengal, Benares, Bihar and Orissa; Madras- before marriage, Bombay- at any age; not an orphan (except granted by custom); and not adopted by another person. No legal problem with the only son. Simultaneous adoption- invalid.

Adoption ceremonies Free consent of the person giving and receiving; Consideration for adoption- doesn’t make it invalid; Adoption cannot be cancelled. The Physical act of giving and receiving the boy. The datta homam and other minor ceremonies, like utresti jag; Datta homam may not be essential in an adoption of the twice-born classes and of the same gotra. May be performed at any time.

Effects of adoption Adopted boy transferred from his natural family into the adoptive family; Confers upon the adoptee the same rights and privileges in the adoptive family as the legitimate son; except- Where a son is born after adoption; and Where he has been adopted by a disqualified heir The adoptee loses all the rights of a son in his natural family (Dayabhaga- does not divest any property vested prior adoption by inheritance, gift or self acquisition) He cannot marry or adopt within the prohibited degrees in the natural family. Married person adopted with a son- the status of son doesn’t change.

Succession by the adopted son An adopted son is entitled to inherit the adoptive family as fully as if he were a natural-born son. He is entitled to inherit his – Adoptive father and to his father, grandfather and more distant lineal ancestors; Adoptive father’s brothers, their sons and other collateral relations; Adoptive mother and her relations; Conversely the adoptive father and mother and their relations are entitled to inherit him.

Son born after adoption Where a son is born to the adoptive father after adoption, the adopted son inherits- In Bengal, one-third; In Benares, one-fourth; In Bombay and Madras, one-fifth, if the estate is impartible, the aurasa son alone succeeds it. Sudras in Madras and Bengal- equal share, in Bombay- one-fifth, Rajasthan and Central Provinces- one-fourth.