The Effects of an Adoption

(c) He divests nobody

The adopted child shall not divest any person of any estate which vested in him or her before the adoption.

This is the proviso that kills the classical doctrine, and it deserves the explanation.

Under the classical law, an adoption by a widow related back to the date of her husband's death. The adopted son was treated as though he had been in existence at that moment, which meant he could divest property that had already vested in somebody else in the meantime, including a collateral who had inherited on the husband's death.

Under proviso (c) he cannot. What has vested stays vested. The adoption operates from its own date and forward only.

A worked example makes it plain. A man dies leaving a widow, and his property vests in her. Some years later she adopts a son. Under the classical law the adoption might relate back and divest her. Under proviso (c) it does not: her estate stays hers, and the adopted son takes as her heir on her death.

Section 13: the adoptive parents may still deal with their property

Subject to any agreement to the contrary, 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.

So adoption gives the child a status, not a lien on the adopter's estate. The adoptive father may sell his separate property or leave it elsewhere, exactly as he could before.

The opening words matter: "subject to any agreement to the contrary". Where the adoption was accompanied by an agreement restricting the adopter's power of disposal, the agreement governs.

And the section speaks of the adopter's own property. It does not enlarge his power over coparcenary property, which remains governed by [Alienation of Property: Separate and Coparcenary].

Section 14: who the adoptive mother is

Four sub-sections, and they answer the questions a problem raises about who stands in what relation to the child.

(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 seniormost in marriage among them shall be deemed to be the adoptive mother, and the others 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-mother of the adopted child.

(4) Where a widow or an unmarried woman adopts a child, any husband whom she subsequently marries shall be deemed to be the step-father of the adopted child.

Sub-sections (3) and (4) are the ones that decide MU's February 2023 problem about Amar and Asha, set out in [The Requisites of a Valid Adoption]. A person who adopts while single does not make the later spouse a parent of the child: the later spouse becomes a step-parent, and the section says so in terms.

Section 15: an adoption cannot be undone

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.

The section is absolute, and it should be answered as such. There is no cancellation, no revocation, no repudiation, and no return. A valid adoption is permanent.

That should be set against section 5. An adoption is either void from the start or permanent. There is no middle position and no way back.

Note the word "validly". Section 15 protects an adoption that satisfied Chapter II. An adoption that did not was never an adoption at all, and section 15 has nothing to bite on.

Section 16: the presumption from a registered document

Whenever any document registered under any law for the time being in force is produced before any court purporting to record an adoption made, and is signed by the person giving and the person taking the child in adoption, the court shall presume that the adoption has been made in compliance with the provisions of this Act unless and until it is disproved.

Three conditions for the presumption, and all must be met: the document must be registered, it must purport to record an adoption made, and it must be signed by both the giver and the taker.

The presumption is rebuttable, "unless and until it is disproved", and the burden of displacing it lies on the person challenging the adoption. In practice a registered deed of adoption is the safest evidence there is, which is why the section is worth knowing even though registration is not compulsory.

Uttar Pradesh has amended the section to provide that for an adoption made on or after 1 January 1977 no court in that State shall accept any evidence of the giving and taking except such a registered document, with secondary evidence admissible in the ordinary way. That is a State amendment and does not apply in Maharashtra, but it shows the direction the law has moved.

Section 17: no payment

Sub-section (1). 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.

Sub-section (2). Contravention is punishable with imprisonment which may extend to six months, or with fine, or with both.

Sub-section (3). No prosecution shall be instituted without the previous sanction of the State Government or an officer authorised by it.

Read this with section 9(5), which requires the court, before permitting a guardian to give a child in adoption, to be satisfied that no payment has been made or agreed, except such as the court may sanction. The two provisions together are the Act's answer to the sale of children, and they are the ancestor of the much fuller machinery in the Adoption Regulations 2022, taken in [Adoption by Persons of Other Religions: the Juvenile Justice Act and the CARA Regulations].

A worked example

Vasant adopted a boy, S, in 2015. At the time S owned a small plot inherited from his natural grandfather, and that plot carried an obligation to maintain his natural grandmother. In 2018 Vasant, a widower, married Latika. In 2024 Vasant sold his own house to a stranger and left the proceeds to a temple by will. He then died. S claims the house is his, says the will is bad, and wants to marry his natural mother's sister's daughter.

Is S Vasant's son? Yes, from the date of the adoption. Section 12 deems him the child of his adoptive father for all purposes, and severs all his ties in the family of his birth from that date.

Does he keep the plot? Yes. Proviso (b) to section 12: property that vested in the adopted child before the adoption continues to vest in him, subject to the obligations attaching to it, including the obligation to maintain relatives in the family of his birth. So he keeps the plot and must still maintain his natural grandmother out of it.

Can he upset the sale and the will? No. Section 13 provides that, subject to any agreement to the contrary, 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. Adoption gives a status, not a claim on the adopter's estate.

What is Latika to him? A step-mother. Section 14(3) provides that where a widower or bachelor adopts, any wife he subsequently marries is deemed the step-mother of the adopted child.

Can he marry his natural mother's sister's daughter? No. Proviso (a) to section 12 preserves the marriage prohibitions of the family of birth: he cannot marry any person he could not have married had he continued in that family.

Can he now renounce the adoption and go home? No. Section 15 is absolute: a validly made adoption cannot be cancelled by anyone, and the child cannot renounce his status and return to the family of his birth.

What it does NOT mean

Section 12 does not operate retrospectively. The child is the adoptive parents' child from the date of the adoption, which is what abolishes the classical doctrine of relation back.

Proviso (c) is not about the adopted child's own property. It stops the adopted child divesting somebody else of an estate that had already vested in that person before the adoption.

Severance is not total. Three things survive: the marriage prohibitions of the birth family, property already vested in the child, and the obligations attached to that property.

Section 13 does not protect coparcenary property. It speaks of the adopter's own property, and it yields to an agreement to the contrary.

Section 14 does not make a later spouse a parent. A wife married after the adoption is a step-mother, and a husband married after it a step-father.

Section 15 does not save an invalid adoption. It protects an adoption "validly made"; one that failed Chapter II was never an adoption and there is nothing to cancel.

Section 16's presumption is not conclusive. It stands "unless and until it is disproved", and it needs a registered document signed by both the giver and the taker.

Quick revision

• s.12: the adopted child is the child of the adoptive parents for all purposes from the date of the adoption, and all ties in the family of birth are severed and replaced.
• Three provisos: (a) the marriage prohibitions of the birth family survive; (b) property already vested in the child stays vested, with its obligations, including maintaining relatives in the birth family; (c) the child divests nobody of an estate already vested, which ends the doctrine of relation back.
• s.13: subject to any agreement to the contrary, the adopters keep the power to dispose of their own property inter vivos or by will.
• s.14: a living wife is the adoptive mother; among several consenting wives the seniormost in marriage; a spouse married later is a step-parent.
• s.15: a valid adoption can never be cancelled, and the child can never renounce it and return.
• s.16: a registered document purporting to record an adoption, signed by the giver and the taker, raises a rebuttable presumption of compliance.
• s.17: no payment or reward for an adoption; contravention carries six months or fine or both, and prosecution needs the State Government's previous sanction.

Test yourself

1. What is the doctrine of relation back, and what happened to it? Under the classical law an adoption by a widow related back to the date of her husband's death, so the adopted son could divest property that had vested in somebody else in the meantime. Proviso (c) to section 12 abolishes it: the adopted child shall not divest any person of any estate which vested in him or her before the adoption, and section 12 operates only from the date of the adoption.

2. What does an adopted child keep from the family of birth? The marriage prohibitions of that family, under proviso (a); and any property that had vested in the child before the adoption, under proviso (b), together with the obligations attaching to it, including the obligation to maintain relatives in the family of birth.

3. A bachelor adopts a son and marries two years later. What is his wife to the child? His step-mother, by section 14(3).

4. Can an adoption be cancelled? No. Section 15 provides that no adoption 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 and return to the family of birth.