Review of Laws and Legislative Measures Affecting Women
by National Commission for Women (NCW)

No.17: The Hindu Adoption and Maintenance Act, 1956


Existing Provisions

Section 7 : Capacity of a male Hindu to take in adoption - - 'any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife has completely and finally renounced that world, or has ceased to b a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind.

Explanation - If a person has more than one wife living at the time of adoption, the consent of all the wives is necessary unless the consent of any one of them is unnecessary for any of the reasons specififed in the preceding proviso.

Section 8 : - Capacity of a female Hindu to take in adoption - Any female Hindu - a) who is of sound mind, b) who is not aminor, and c)who is not married, or if married, whose husband 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, has the capacity to take a son or daughter in adoption.

Section 14 : Determination of adoptive mother in certain cases - 1) Where a Hindu who has a wife living adopts a child, she shall be deemed to be the adoptive mother. 2) Where an adoption has been made with the consent of more than one wife, the senior most in marriage among them shall be deemed to be the adoptive mother and the others to be step-mothers. 3) Where a widower or a bachelor adopts a child, any, wife whom he subsequently marries shall be deemed to be the step-m other of the adopted child.

Section 18 : Maintenance of Wife - 1)..., 2)...., 3) A Hindu wife, shall not be entitled to separate resident and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.

Suggested Amendments by NCW

Section 7 : Capacity of a Hindu to take in adoption - 'Any person who is a Hindu of sound mind and I not a minor has the capacity to take a son or a daughter in adoption': - 'Provided that, if he/she has a spouse living, he/she shall not adopt except with the consent of his/her spouse unless the spouse 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 un sound mind'. (A female Hindu who is married and whose husband becomes incapacitated and if she chooses not to re-marry, she would remain a member of her husband's family. If she desired to make an adoption, the adopted child must be related to the husband of the female making the adoption.' The Explanation of this section shall be deleted.

Section 8 : Capacity of a female Hindu to take in adoption - This section shall be deleted.

Section 14 : Determination of Adoptive mother/Father in certain cases - 1) Where a Hindu who has a spouse living adopts a child, she/he shall be deemed to be the adoptive mother/father. Sub-section 2) of Section 14 shall be deleted. For sub-section 3) of Section - The word 'mother' should be substituted for the word 'step-mother'. For sub-section 4 of section 14, the word 'father' should be substituted for the word 'step-father'.

Section 18 : Maintenance of Wife: 1)..., 2)...., 3) In sub-secjtion 3) of section 18 the words 'is unchaste or' shall be deleted.

Justification

Section 7 : Capacity of a Hindu to take in adoption - These changes would ensure a safer home for the child to be adopted. A female Hindu who is married and whose husband becomes incapacitated, if chooses, not to remarry, she would remain a member of the family of her husband. If she desires to make an adoption the adopted child must be ensured full relationship in the family of his adoption and such a child must be related to the husband of the female making the adoption. This would be in consonance to the words and sprit of the Act.

As practice of bigamy is prohibited under the Hindu Marriage Act, hence this section has no meaning in present situation

Section 8 : Capacity of a female Hindu to take in adoption - While a Hindu husband can adopt a child to himself and to his wife, if the latter has consented, a Hindu wife cannot adopt to herself but the adoption must be by the husband alone and her only role is to give or decline a consent. To make the father alone entitled to adopt without any such similar right to and in favour o the mother cannot satisfy the requirements of article 14 and 15 of the Constitution. Whosoever would adopt, the father or the mother the other would become the adoptive father or the adoptive mother as the case may be, and the adopted child shall stand transplanted as the child of and in the adoptive family for all purposes, as provided in section 12 of the Act. Amendment to Section 7 will satisfy the requirement and consequently this section will not have meaning.

Section 14 : Determination of Adoptive mother/Father in certain cases - When an adoption is made by an unmarried or widow Hindu female or a male Hindu bachelor or a widower the Act provides that the husband with whom such a female marries shall be deemed to be the step father of the child adopted before marriage, likewise male who is bachelor or widower after making an adoption marries, his wife shall be deemed to be the step mother of the adopted child. Sub-section 2) of section 14 - This provision is valid only in the case of polygamy which is already prohibited under the Hindu Law. Sub-section 3) of section 14 - These provisions are onerous and they are not in the interest of the adopted child because the adopted child if adopted by a female will not have paternal relations and the adopted child of a single male shall not have material relations. Sub-section 4 of section 14 - That the adopted children may have full relationships on the marriage of the adopters, in the paternal and the maternal lines.

Section 18 : Maintenance of Wife: 1)..., 2)...., 3) Conversion should not be the criteria to deprive a woman from her rights. Depriving a Hindu wife of her right for separate residence and maintenance solely on the ground of her ceasing to be Hindu as provided in section 18 ( 3 ) of the Act is equally unreasonable and violative of the provision of the Constitution (Article 15). Note - In order to minimize the hardship caused by non-payment of maintenance, and to ensure certainty of payment, it has been recommended that 'all maintenance orders should be deducted at the source by employer (as done in the case of income-tax). Whether it I not possible to deduct at source as in the case of a business man or self-employed person, the arrears of maintenance should re recovered as arrears of the land revenue or by distress'

 

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