Heterosexual couples married a minimum of two years may adopt from India. Single women and men are allowed to adopt; single men may only adopt boys. Applicants must be between the ages of 25-55; financially capable; physically, mentally and emotionally stable and without any life-threatening conditions.
Hindu Adoptions 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. 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.
Section 11 in The Hindu Adoptions and Maintenance Act, 1956
11 Other conditions for a valid adoption. —In every adoption, the following conditions must be complied with:—
(i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son's son or son's son's son (whether by legitimate blood relationship or by adoption) living at the time of adoption;
(ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;
(iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-one years older than the person to be adopted;
(iv) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty-one years older than the person to be adopted;
(v) the same child may not be adopted simultaneously by two or more persons;
(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth 1 [or in the case of an abandoned child or child whose parentage is not known, from the place or family where it has been brought up] to the family of its adoption:
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.
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
Adoption under Muslim law:
Adoption is the transplantation of a son from the family in which he is born, into another family by gift made by his natural parents to his adopting parents. Islam does not recognise adoption. In Mohammed Allahabad Khan v. Mohammad Ismail it was held that there is nothing in the Mohammedan Law similar to adoption as recognized in the Hindu System.
Acknowledgement of paternity under Muslim Law is the nearest approach to adoption. The material difference between the two can be stated that in adoption, the adoptee is the known son of another person, while one of the essentials of acknowledgement is that the acknowledge must not be known son of another.
However an adoption can take place from an orphanage by obtaining permission from the court under Guardians and wards act.
Adoption under Parsis and Christian laws:
The personal laws of these communities also do not recognize adoption and here too an adoption can take place from an orphanage by obtaining permission from the court under Guardians and wards act. A Christian has no adoption law.
Since adoption is legal affiliation of a child, it forms the subject matter of personal law. Christians have no adoption laws and have to approach court under the Guardians and Wards Act, 1890. National Commission on Women has stressed on the need for a uniform adoption law. Christians can take a child under the said Act only under foster care. Once a child under foster care becomes major, he is free to break away all his connections. Besides, such a child does not have legal right of inheritance.
The general law relating to guardians and wards is contained in the Guardians and Wards Act, 1890. It clearly lays down that father's right is primary and no other person can be appointed unless the father is found unfit. This Act also provides that the court must take into consideration the welfare of the child while appointing a guardian under the Act.
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
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):
