Author: Anjali Sanyal, Techno India University, Kolkata
TABLE OF CONTENTS
Abstract
Keywords
Introduction
What is Legal Adoption?
Adoption under Hindu Law
Conditions for adoption by Hindu couples or single parent
Condition as per the Guardians and Wards Act, 1890
What are the maintenance for child ?
Case laws
Conclusion
References
FAQS
ABSTRACT
The abstract on this article analyzed legal and societal dimensions, it assesses how the Act influences adoption practice with in Hindu community, examining it’s implication for children’s well being. The study delves into the Act’s of historical context, legislative framework and its alignment with contemporary child welfare principles. It explores the impact of the Hindu Adoption and Maintenance Act on child welfare in India.
KEYWORDS
Adoption, Maintenance ,Welfare , Children ,Consequences
INTRODUCTION
“Adoption is not about finding children for families, it’s about finding families for children.”
-Joyce Maguire Pavao
The Hindu Adoptions and Maintenance Act (HAMA) of 1956 is a significant piece of legislation in India that governs the adoption of children by Hindus. The Act applies to any person who is a Hindu by religion in any of its forms or developments, including Buddhists, Jains, and Sikhs. Under the HAMA Act, both a male and female Hindu are entitled to adopt a child, provided they meet the eligibility criteria set forth in the Act. One of the key aspects of the HAMA Act is that it allows only the adoption of a child of the opposite sex if the adopting parent already has a child of that sex, and it requires the adopting parent to be at least 21 years older than the child being adopted. The primary objective of the HAMA Act is to ensure the welfare of the child while preserving the rights and responsibilities of the adopting parents and the biological parents where applicable. It is the responsibility of both the parents to provide the basic necessities to their children for their healthy growth.
WHAT IS A LEGAL ADOPTION ?
A legal adoption is a formal process in which an individual or couple assumes the legal rights and responsibilities of being a parent to a child who is not biologically their own. According to the Juvenile Justice (Care and Protection of Children) change Act,.2006, once the adoption is finalized, the adoptive parents are legally recognized as the child’s parents, and the child’s biological parents’ legal rights and responsibilities are terminated. Legal adoption is a permanent and binding arrangement, and it provides a legal framework for the new parent-child relationship.
ADOPTION UNDER HINDU LAW
In the Hindu law, adoptions is governed by the Hindu Adoption And Maintenance Act,1956. It allows a Hindu male or female to adopt a child if certain conditions are met, such as :
The person who adopting has the capability, and also the right to take in adoption.
The person giving in adoption has the capability to do so.
The adopted is capable of being taken in adoption.
The adoption is made in compliance.
CONDITION OF HINDU ADOPTION FOR COUPLE OR SINGLE
FOR COUPLES
If a Male Hindu to take in Adoption they must asked to his wife.
If a female Hindu to take in adoption they must take Consent to her husband.
If a Male Hindu who has multiple wives he must have to take consent to every wives.
If a Hindu male or a female want to adopt a son, they should not have a son living whether legitimate or illegitimate, at the time of adoption.
If a Hindu male or a female want to adopt a daughter, they should not have a daughter or son’s daughter living at the time of adoption.
FOR SINGLE HINDU MALE
Male want to adopt a daughter, he should be at least 21, years older than the adoptive daughter.
A Hindu male have to be sound mind.
The have capacity to give a proper life to adopted son or a daughter.
FOR SINGLE HINDU FEMALE
Female want to adopt a son she should be at least 21 years older than the adoptive son.
A Hindu female have to sound mind .
They should have capacity to give a proper life to adopt a son or daughter.
CONDITION AS PER GUARDIAN AND WARD ,1890
According to the section 8 of Guardian and ward, 1890 provide this section following person can make an application:
The relative or friend of minor.
The collector who has the authority
The person who is deciduous of being or claiming to be guardian of the minor.
WHAT ARE THE MAINTENANCE FOR CHIND?
The term maintenance means financial assistance which is provided for the basic necessities of life, food, cloth, shelter, education, medical care, etc. by the provider the family.
Section 3(b), Hindu Adoption and Maintenance Act, 1956 defined maintenance as:
In the case of an unmarried daughter, also the Reasonable expenses of an incident to her marriage.
In case of provided food, clothing, residence, education to the child.
Although an unmarried daughter has the right of maintenance even after attending the age of majority (i.e.18 year).
When the custody of a child is with one parent, in case of their separation.
When the child born out of a live-in relationship.
When the child lives with their parents.
Hindu Adoption and Maintenance Act, 1956 Section 20 provides for Maintenance of children and aged parents, under this section a Hindu male or female is bound, during his or her lifetime, to maintain-
His / her legitimate/illegitimate children (minor),
An unmarried daughter,
His or her aged, or infirm parents.
CASE LAWS
“In the case of, Padmja Sharma v. Ratan Lal Sharma (2000), The Supreme Court of India ruled that both parents are equally responsible for the maintenance of their children. The Court emphasized that the obligation to maintain children is not solely on the father but is a joint responsibility of both parents. As per section 20, of Hindu Maintenance And Adoption act, 1956.
In the case of, Smt. Prafulla Bala Mukherjee v. Satish Chandra Mukherjee and others (1998). It was held that for a valid adoption, not only the person adopting should be capable of lawfully taking in adoption, but the person giving must be capable of lawfully giving in adoption and the person adopted must be capable of being lawfully taken in adoption.
CONCLUSION
The provisions regarding child maintenance under Hindu law as well as under Code of Criminal Procedure promote the interest of the child and protect the children from any kind of discrimination which is also the motive of United Nations Convention on the Right of the Child, Article 2(2), to which India ratified, as well as of the Universal Declaration of Human Right, Article 25(2) which also states about child protection under International Law. From the above provisions and case law, it is clear that the law is abundantly clear on the point that child’s welfare is a paramount consideration as stated under section 13 of The Hindu Minority and Guardianship Act,1956 while deciding the issue related with the child in any cases. So, we can conclude that India is on the right path to protect childhood & promote the welfare of children which is guaranteed under our Constitution.
REFERENCES
BARE ACT OF HINDU LAWS
https://indianlawportal-co-in.cdn.ampproject.org/v/s/indianlawportal.co.in/child-maintenance-under-hindu-law/amp/?amp_gsa=1&_js_v=a9&usqp=mq331AQIUAKwASCAAgM%3D#amp_tf=From%20%251%24s&aoh=17018761481756&referrer=https%3A%2F%2Fwww.google.com&share=https%3A%2F%2Findianlawportal.co.in%2Fchild-maintenance-under-hindu-law%2F
https://www.legalserviceindia.com/legal/article-1884-maintenance-under-hindu-law.html#google_vignette
https://www.haqcrc.org/pdf/juvenile-justice-act-central-model-rules/
https://www.drishtijudiciary.com/to-the-point/ttp-hindu-law/adoption-under-hindu-law#:~:text=The%20HAMA%20also%20lays%20down,consent%20to%20adopting%20a%20child.
FAQS
Who can adopt under the HAMA Act?
Any Hindu male or female who is of sound mind and not a minor can adopt a child under the HAMA Act. A married man must obtain the consent of his wife before adopting unless she is incapable of giving consent due to mental illness or other reasons.
Can an adopted child inherit property under the HAMA Act?
Yes, an adopted child has the same rights as a biological child in terms of inheritance.
Can a working wife claim maintenance?
Yes, a working wife can claim maintenance if she is unable to maintain herself adequately, considering her income and the standard of living during the marriage.
Is maintenance under the HAMA Act limited to women and children?
No, maintenance can also be claimed by aged or infirm parents and, under certain conditions, by dependents such as a widowed daughter-in-law.
