ADOPTION

ADOPTION 

A child is the blessing to parents and a family as a whole, but unfortunately, this blessing is not given to everyone, some due to one or the other reason doesn’t conceal a child. At those times and in such a situation, many of the couples decide to adopt a child, but many of the couples are unaware of the rights and laws relating to the adoption or guardianship.

Adoption means the couples who adopt the child for themselves, guardian in simple words means the person who takes care of the child after the parents may be due to the divorce, death or any other circumstances.

The Indian / Hindu Law since ancient time have granted laws for the adoption and guardian of the child. The basis of Hindu Law adoption is spiritual and secular. The adoptive son or the adoptive father becomes a coparcener and can acquire a share in coparcenaries property.  

For every Hindu son, it is essential to offer the benefits of the property. If the father dies and has no child ultimately owes the property to the widow, where the widow adopts the child and he /she, in turn, shares the property.

Whenever the unmarried son dies he indirectly owns to the mother.

• There is a certain condition to a Valid Adoption: the Hindu law of Adoption is codified in the Hindu Adoption and Maintenance Act 196. Any adoption made under this act will be termed as void. Void adoption can never be changed. An adoptive father can gift some property to the adoptive son.

• Under Section 6 the Act states a certain condition for void adoption: the person should be capable,  the person given in adoption must have the capacity, adopted must have the capacity to get adopted,  other necessary conditions to be fulfilled.

Before the enactment of the act, the adoption was done physically by giving, after the act under section11 the child was given and taken by the parents and guardians.

But after noticing we came across like there can be involvement of 3^rd party as in the name of the guardian.

According to Hindu Law, a sonless man can adopt a son. Even a bachelor or widower can adopt a son. However, there were no possibilities to adopt a daughter. So the wife was allowed to adopt a son to her husband as an agent.

Certain conditions were imposed:  he should not be a minor or a lunatic. The male can adopt a child if he is of sound mind if he has a wife he can adopt with his wife’s consent under section 7.

·        A married woman cannot adapt herself so she can only adopt if she is: if she is divorced, she is a widow if the husband has reannounced himself completely. if the husband converts in other religions. if declared lunatic by the court.

·        Females can adopt a son or daughter.

The guardian can only give the child in adoption only if the father or mother is dead. If they are completely renounced. When they are decided by the court as an unsound mind.

 The court has certain powers in the adoption process: the adoption must be for the welfare of the child. The person adopting must be of the same caste. They should be living near the relation. The person should be kind and affectionate.

Under section 10 there are certain provisions imposed to adopt a son as well as a daughter.

·        There should be no restriction on caste.

·        The child to be adopted should be unmarried and below 15 years of age.

·        When Hindu Adopts a child there must be a difference of 21 years.

Law of Guardianship Act relating to minority and guardianship among  is now codified under the Hindu Minority and Guardianship Act of 1956 :

•      The act defines the person under the age of 18 years as a Minor.

•  If the Hindu Minor has a Guardian appointed by the court it continues till the age of 21.

•   Guardian takes care of: the minor, his property, both

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Guardianship depends upon the trust, therefore the person who is the guardian cannot switch or give his duties to the other person as a guardian but he can only give the custody to the other person whereas he will only be the guardian, he can give custody to the other but not the Guardianship. This was clear in the case of Anne Besant Vs Narayanath.

Certain conditions are imposed for Natural Guardian under Section 6 of the Act.

·        The father will be the Natural guardian in case of son & Unmarried daughter & after him, the mother becomes the guardian.

·        The mother will be the Natural Guardian in case of an illegitimate boy or unmarried daughter, after her, the father becomes the Guardian.

·        In case if the daughter is married, the custody of a minor below 5 years remains with the mother, but the father only is the Guardian. If the father wishes he can appeal to the court and take the custody of the child to him.

Remember the child has a Natural Guardian from the period the child is born, later it depends on the provisions described under the Act.