THE HINDU ADOPTION AND

MAINTENANCE ACT, 1956

T. C.SUJATHA
 LAW OF ADOPTION
• No uniform adoption law in India
• Indian Adoption Bill was introduced in 1971 – lapsed by dissolution of
parliament
• Fresh Bill introduced in 1980- lapsed in 1984
• Adoption is recognised among Hindus
• HAMA - facilitated the adoption of Hindu children by a person belonging
to Hindu community,
• Not recognised adoption law for Muslim, Christians, Parsis, Jews
• Regulated by Guardian and Wards Act, 1890
• GWAct- no religious connection
• Hindus aslo can adopt under this Act
• Secular purpose to help destitute children
• Juvenile Justice (Care and Protection) Act, 2015
• secular adoption law
• Section 2(2) of Juvenile Justice (Care and Protection) Act, 2015, ‘Adoption’
means the process through which the adopted child is permanently
separated from his biological parents and becomes the lawful child of his
adoptive parents with all the rights, privileges and responsibilities that are
attached to a biological child.
• It is the Central Authority of India, which is mandated to promote &
facilitate domestic adoptions, regulate inter-country adoption and frame
Adoption Regulations as per Section 68 of JJ Act(C&PC), 2015.
• Children up to the age of 18 years can be adopted. (Section 2(12)
• a couple or a single parent can adopt an orphan/ abandoned/surrendered
child. Section 56(1)
• for Declaring a Child Legally Free for Adoption (Section 38)
• Apply to a Specialised Adoption Agency (SAA)
 Why adoption is recognised among Hindus
• Need for a son- Son alone can provide salvation to the departed ancestors
• Perform religious and indispensible duties
• To maintain lineage (lineal descent)
• To succeed heritage ( inheritance) – to help and assist the aged parents
Changes made in the year 1956
• Adoption law extended to Jain, Sikh, Buddhist
• Boys and girls can be taken into adoption
• Rights of Hindu female for adoption is recognised
• No ceremony is recognised
• Doctrine of relation back abolished.
• A Hindu Male cannot adopt a child without the consent of his wife
• No relevance to the doctrine of factum valet
 Meaning of adoption
• Taking an unrelated person into one’s relationship as one’s own child
• Marriage and sonship constitute a unique aspect of ancient HL
• No particular form of adoption
• Adopted son is a creature of law
• Modern law recognised legitimate son ( Aurasa)
• Ceremony of dattahomam is not essential- may be performed.
• Daughters given in mariage ( Kanyadana) and Son given in adoption
(Putradana) were identical- both were gifts for religious and secular
purposes.
• Old Hindu law
Adopted son challenge the alienation made by the widow prior to the
adoption- Reason was adoption relation back to the date of death of
adoptive father. This was called doctrine of relation back.
 HAMA, 1956 w.e.f 21-12-1956
• Extends to whole of India
• Not applicable to Schedule Tribes U/A 366 Central Govt notification
Official Gazette
• This Act extended to Pondicherri by Act No, 26 of 1968 wef 24-4-1968 but
not applicable to Renoncants- those inhabitants of Pondicherri who after
the merger of territory in Union of India opted to governed by French law
than Indian law.
• Section 4 Overriding effect
• Prior to the Act the law of adoption was governed by the texts of Hindu
Law like Manu, Saunaka Vashista, Dattaka Chandrika etc overrided. Law
inconsistent with only of the provisions of the Act- cease to effect.
• Illatom adoption- customary adoption
• Some of the castes SIL kept home to manage the properties on the
promise to give a share on the property – abrogated by this Act.
 Chapter II
Section 5 Adoption to be regulated by this chapter.

• Adoptions made after the Act came into force- governed by the provisions
of this chapter Sections 5-17 and also declares adoption made otherwise
contravention of the said provisions shall be void.
• Adoption which is void – shall neither create right in the adoptive family
nor destroy the right of any person in the family of his or her birth
• Nonfulfilment of the requirement of Section 5-17 is void
• Adoption took place prior to the Act invalid –cannot become valid after the
Act came into force- no retrospective in operation.
Section 6 Requisites of a valid adoption.No adoption shall be valid unless
• (i) the person adopting has the capacity, and also the right, to take in
adoption;
• (ii) the person giving in adoption has the capacity to do so;
• (iii) the person adopted is capable of being taken in adoption; and
• (iv) the adoption is made in compliance with the other conditions
mentioned in this Chapter.
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:
• 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 the world or has
ceased to be a Hindu or has been declared by a Court of competent
jurisdiction to be of unsound mind.
• More than one wives- consent of all wives
Section 8. Capacity of a female Hindu to take in
adoption. - Any female Hindu who is of sound mind and is not a minor
has the capacity to take a son or daughter in adoption:
• Provided that, if she has a husband living, she shall not adopt a son or
daughter except with the consent of her husband
• unless the husband 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.
 Section 9 Persons capable of giving in adoption
• There are three persons empowered to give child in adoption
• Father, Mother and Guardian
• the father or the mother, if alive, shall have equal right to give a son or
daughter in adoption- with the consent of the other
• unless one of them 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
• Where both the father and mother are dead or have completely and
finally renounced the world or have abandoned the child or have been
declared by a Court of competent jurisdiction to be of unsound mind or
where the parentage of the child is not known,
• the guardian of the child may give the child in adoption with the previous
permission of the Court to any person including the guardian himself.
• father and mother do not include an adoptive father and an adoptive
mother
• guardian means a person having the care of the person of a child or of
both his person and property and includes- a guardian appointed by the
will of the child’s father or mother, and
 Section 10 Persons who may be adopted
• he or she is a Hindu;
• he or she has not already been adopted
• he or she has not been married,
• he or she has not completed the age of fifteen years
unless there is a custom or usage applicable to the parties which permits
persons who are married / who have completed the age of 15 yeas being
taken in adoption
Section 11. Other conditions for a valid adoption
• if the adoption is of a son, the adoptive father or mother by whom the
adoption is made must not have a Hindu son, sons son or sons sons
son( legitimate/ adoption) at the time of adoption
• 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 sons daughter
(whether by legitimate blood relationship or by adoption) living at the
time of adoption
• 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
• 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
• the same child may not be adopted simultaneously by two or more
persons
• Actual giving and taking of the child
• the performance of datta homam shall not be essential to the validity of
an adoption
• Mental deficiency of the child is no bar for adoption
 Section 12 Effects of adoption
• An adopted child shall be deemed to be the child of his or her adoptive
father or mother for all purposes with effect from the date of the
adoption
• All the ties of the adopted child with the original family stands
extinguished from the date of adoption
• the child cannot marry any person whom he or she could not have
married if he or she had continued in the family of his or her birth S 12(a)
• any property which vested in the adopted child before the adoption shall
continue to vest in such person subject to the obligations, if any, attaching
to the ownership of such property, including the obligation to maintain
relatives in the family of his or her birth S 12(b)
• the adopted child shall not divest any person of any estate which vested in
him or her before the adoption S 12 ( c )
• (c) The adopted child shall not divest any person of any estate
which vested in him or her before the adoption
• Veenabai v. Basudeo, the husband died after the passing of
the Hindu Succession Act, 1956 leaving behind his widow.
The widow after some time adopted a son and thereafter
disposed of a part of the property inherited by her. The
adopted son challenged the validity of the sale. The court held
that the adoption will come into effect from the date of his
actual adoption and he would come into existence from that
date but not prior to it, as the rule of ‘Relation back’ had
provided under the old law.
• The adopted child could not divest his adoptive mother of any
property which had vested in her prior to the act of his
adoption as laid down in the proviso (c) to section 12. Hence
the sale was held as valid
 For all purposes
Three brothers A B C ( coparceners)
AS, BS , CS ( adopted son)
CS coparcener with A ,B,C, AS, BS
‘A’ as Kartha wants to alienate some property CS like other
coparceners, can take appropriate proceedings to prevent him from doing
so.
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Adopted son of a window of a coparcener will also become a coparcener with
the surviving coparceners of her husband
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Section 12 (b) Mother—Two Sons X and Y
X and Y inherited property from their mother.
Subsequently Father gave away X in adoption
X will continue the owner of the property inherited before adoption
• MFF MF M X
• X inherited property of MFF
• MFF has to maintain widowed DIL (P)
• X given in adoption
• X maintain P

Har Chand Vs. Ranjeet AIR 1986 P & H 259

X had two sons A and B
X died leaving them behind
Subseqently B was given in adoption,
A claimed the entire properties of his father on the averment that on B’s
adoption, he left the natural family and all his ties were severed.
Rejecting this the P & H HC held that soon after the death of X , a share in
the properties of his father got vested in him. Subsequently, on adoption,
he cannot be divested of this property.
• Ramanna Gowda Vs. Shankarappa, AIR 1988 Kant 248
The HC held that since on adoption the adopted child becomes a member
of the adoptive family and all ties in his natural family are severed and all
ties in the adoptive family are created, the child adopted by coparcener’s
widow becomes a coparcener and therefore, becomes entitled to share in
the joint family property as and when partition is effected.
The court added that even when on the death of one of the two
coparceners ( when coparcenary consists only two) , the property passes
to the sole surviving coparcenery, on account of the presence of the
widow of the coparcener the JF does not cease to exist. The adopted son
also has a right to seek partition, and he along with his adoptive mother
could take the same share which the deceased coparcener would have
taken had he been alive.
In Dharma Shamrao Agalawe Vs Pandurang 1988
The Supreme Court confirmed this view
• In Puneetavalli v. Ramalingham, a Hindu widow inherited certain property
from her deceased husband which she took at as limited owner. When
Hindu Succession Act, 1956 came into force, she became absolute owner
of the property inherited by her and thereafter she took a son in adoption.
After adoption the widow gifted away a part of the property thus
inherited by her in favour of her daughter Puneetavalli. The adopted son
challenged the validity of gift. During the course of the pendency of the
case the widow died.
• Before the adoption the property had vested in her and therefore even
after adoption the property continued to vest in her which the adopted
son could not divest. Thus the gift made by the widow in her daughter’s
favour was held to be valid and legal.

• a joint Hindu family consists of ‘A’, the father, and two daughter D1 and
D2 and W the wife. A dies and the property is inherited by ‘W, D1 and D2 in
equal shares. Now if widow adopts a son ‘S’, he will not be entitled to
divest ‘W’ of any property which falls to her share.
• Section 13 Right of adoptive parents to dispose of their
properties
• an adoption does not deprive the adoptive father or mother of the power
to dispose of his or her property by transfer inter vivos or by will- Subject
to any agreement to the contrary
• Section14. Determination of adoptive mother in certain
cases.
• Hindu Male – adopts a child – his wife becomes adoptive mother
• More than one wife, senior most wife becomes adoptive mother and
others to be step mothers
• Widower or Bachelor adopts a child- subsequently marries- becomes step
mother
• Widow or unmarried woman adopts a child- subsequently marries- he
becomes step father
 Section 15. Valid adoption not to be cancelled.—No adoption which has
been validly made can be cancelled by the adoptive father or mother or any
other person, nor can the adopted child renounce his or her status as such
and return to the family of his or her birth
Section 16 Presumption as to registered documents relating to
adoption.
Registered documents- signed by the person giving and taking the child
in adoption- court shall presume that the adoption has been made in
compliance with the provisions of this Act
Rebuttable presumption
Section 17. Prohibition of certain payments
No person shall receive or agree to receive any payment or other reward
in consideration of the adoption of any person, and no person shall make
or give or agree to make or give to any other person any payment or
reward the receipt of which is prohibited by this section
contravenes -punishable with imprisonment which may extend to six months,
or with fine, or with both
No prosecution- without previous sanction of the State govt.
 Maintenance
• Food , Clothing, Residence, Education, Medical attendance and treatment
• Unmarried daughters- reasonable expenses- customary presentation to bride and
bridegroom – travelling expenses, food to the guests- religious ceremonies-
awarded by the Court as per the social status and standard of the party
concerned- dowry does not expenses- incidental expenses- before or after
marriage- betrothal ceremony- honeymoon- present to relatives
• Section 18 Maintenance to wife
• a Hindu wife shall be entitled to be maintained by her husband during her life
time ,whether married before or after the commencement of this Act
• A Hindu wife shall be entitled to live separately from her husband without
forfeiting her claim to maintenance
• if he has treated her with such cruelty as to cause a reasonable apprehension in
her mind that it will be harmful or injurious to live with her husband;
• (c) if he is suffering from a virulent form of leprosy;
• (d) if he has any other wife living;
• (e) if he keeps a concubine in the same house in which his wife is living or
habitually resides with a concubine elsewhere;
• (f) if he has ceased to be a Hindu by conversion to another religion;
• (g) if there is any other cause justifying living separately.
• A Hindu wife shall not be entitled to separate residence and maintenance
from her husband if she is unchaste or ceases to be a Hindu by conversion
to another religion.
• Meera Nireshwalia v. Sukumar Nireshwalia, AIR 1994 Mad 168- he wife
had been living alone and all the children had been brought up by her
without any assistance and help from the husband and there was a clear
case of desertion, the wife was entitled to separate residence and
maintenance
• Meera Nireshwalia v. Sukumar Nireshwalia, AIR 1994 Mad 168- Merely
because the wife fails to strictly prove the specific grounds urged by her,
she cannot be denied relief—( clause (g))
Section 19. Maintenance of widowed daughter-in-law.
A Hindu wife shall be entitled to be maintained after the death of her
husband by her father-in-law -whether married before or after the
commencement of this Act
When she is unable to maintain herself out of her own earnings or other
property or she has not property of her own,
• Unable to obtain maintenance from
• - estate of her H or her F or M or – from her S / D or his /her estate
• This right of a Hindu widow to claim maintenance from her father-in-law cannot
be enforced if the father-in-law does not have the means to do so from any
coparcenary property in his possession out of which the daughter-in-law has not
obtained any share
• Liability of the father-in-law comes to an end where the widow is remarried or
she has obtained a share in the coparcenery properties while partition. But her
right to share in the separate property of her husband or in his interest in
coparcenery property cannot be divested.
• Section 20. Maintenance of children and aged parents.
• a Hindu is bound, during his or her lifetime, to maintain his or her
legitimate or illegitimate children and his or her aged or infirm
parents.
• Minor children
• Unmarried daughters , aged or infirm parents – is unable to
maintain himself or herself out of his or her own earnings or other
property
• “parent” includes a childless step-mother
• The Hon’ble Supreme Court, on 15th September 2020, in the matter
of Abhilasha v. Parkash & Ors. held that an unmarried Hindu daughter can
claim maintenance from her father till she is married relying on Section
20(3) of the Hindu Adoptions and Maintenance Act, 1956. However,
maintenance u/s 125 Cr.P.C cannot be granted to unmarried daughter
after she has become major unless she is by reason of any physical or
mental abnormality or injury is unable to maintain itself.
Section 21. Dependants defined
The following relatives of the deceased- His / Her F, M, W ( Not Remarry) ,
Son, Son of his predeceased son or son of a predeceased son of his
predeceased son ( minor) ( unable to maintain – in case of a grandson
from his F’s or M’s estate- in case of a great grand son from his F or M or
F’s F or F’s M)
Unmarried D or unmarried D of his predeceased son or unmarried D of a
predeceased S of his predeceased son – unable to maintain – in case of
GD fro her F’s or M’s estate and in case of a GGD from her F or M or F’s F
or F’s M
• Widowed D- unable to maintain
• From the estate of her H- or from her S or D or his or her estate or- FIL or
his F or estate of either of them
• Widow of his Son or son of his predeceased son ( not remarry) - unable to
obtain maintenance fro her H’s estate or from her son or D or his/her
estate or – in the case of GS’s widow also from her FIL’s estate
• his or her minor illegitimate minor son
• his or her illegitimate unmarried daughter,
Section 22. Maintenance of dependants
the heirs of a deceased Hindu are bound to maintain the dependants of the
deceased out of the estate inherited by them from the deceased.
Where a dependant has not obtained, by testamentary or intestate-
succession, any share in the estate of a Hindu dying after the
commencement of this Act, the dependant shall be entitled, to
maintenance from those who take the estate.
The liability of each of the persons who takes the estate shall be in proportion
to the value of the share or part of the estate taken by him or her.
Section 22(4) Person himself or herself dependant of the deceased not liable to
contribute to the maintenance of others, if the value of the share obtained by him
would be less than what could be awarded him/her by way of maintenance under
this Act
Eg As a dependant , a person is entitled to maintain Rs 200 per month. The value of the
share / estate taken by him- annual income is only Rs 1000/- - need not contribute.

Section 23. Amount of maintenance

Discretion of the Court – judicial not arbitrary- guided by sound principles of law- show
confirm to the rules laid in this section.
Determining the amount of maintenance-to wife, children or aged or infirm parents-
• (a)the position and status of the parties;
• (b) the reasonable wants of the claimant;
• (c) if the claimant is living separately, whether the claimant is justified in doing so;
• (d) the value of the claimant’s property and any income derived from such property,
or from the claimant’s own earnings or from any other source;
• (e) the number of persons entitled to maintenance under this Act.
• Determining the amount of maintenance- dependant
• the net value of the estate of the deceased after providing for the
payment of his debts;
• (b) the provision, if any, made under a will of the deceased in respect of
the dependant;
• (c) the degree of relationship between the two;
• (d) the reasonable wants of the dependant;
• (e) the past relations between the dependant and the deceased;
• (f) the value of the property of the dependant and any income derived
from such property, or from his or her earnings or from any other source;
• (g) the number of dependants entitled to maintenance under this Act.
Father married again- daughter living separately – cannot live with step
mother- F cannot refuse to pay maintenance
Minor child living with mother, necessities of child will constitute reasonable
grounds
• Section 24Claimant to maintenance should be a Hindu
• Not entitled to claim maintenance if he or she has ceased to be a Hindu by
conversion to another religion.

• Section 25 Amount of maintenance may be altered on change of circumstances

• Widow agreeing not to claim increased maintenance under the terms of prior
decree. She is not barred to claim enhanced maintenance under altered
circumstances
• Abnormal cost of living
• Person entitled to be maintained compromises and accepts a fixed sum in lieu of
maintenance and relinquishes, the right of maintenance. Section 25 is not
applicable.
Section 26. Debts to have priority.—Subject to the provisions contained in section 27
debts of every description contracted or payable by the deceased shall have priority
over the claims of his dependants for maintenance under this Act
Section 27. Maintenance when to be a charge.—A dependant’s claim for maintenance
under this Act shall not be a charge on the estate of the deceased or any portion
thereof, unless one has been created by the will of the deceased, by a decree of
court, by agreement between the dependant and the owner of the estate or
portion, or otherwise.
• Section 28 Effect of transfer of property on right to
maintenance
• Notice of right / transfer is gratuitous
• Dependant can enforce against the transferee
• Gratuitous transfer- Suit filed by widowed DIL- for
maintenance- against FIL- FIL gifted to D- after filing the suit. D
liable to pay maintenance to DIL
• Section 39 Transfer of Property Act
• Transfer where third person is entitled to maintenance
• Notice / gratuitous but not against transfer for consideration
and without notice of the right