The Hindu Adoptions and Maintenance Act: Scope and Definitions

That definition matters here more than it looks, because section 10 lets custom override two of the conditions of a valid adoption, and it is this definition that a party asserting such a custom must satisfy.

Section 4: overriding effect

Section 4 provides, in the same terms as the corresponding sections of the other codifying Acts, that save as otherwise expressly provided, any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement ceases to have effect with respect to any matter for which provision is made in the Act; and any other law in force immediately before the commencement ceases to apply to Hindus in so far as it is inconsistent.

So the classical law of adoption is displaced, except where the Act itself invites custom back, which it does in section 10(iii) and 10(iv).

Section 5: adoptions to be regulated by this Chapter

Section 5(1). No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provisions shall be void.

Section 5(2). An adoption which is void shall neither create any rights in the adoptive family in favour of any person which he or she could not have acquired except by reason of the adoption, nor destroy the rights of any person in the family of his or her birth.

Why this is the most important section in the chapter

There is no such thing as an irregular adoption. An adoption either complies with Chapter II or it is void. There is no voidable adoption, no adoption good until avoided, and no curing an omission afterwards. Compare the marriage law, where breach of some conditions makes a marriage void, of others voidable, and of one neither.

Sub-section (2) states the consequences both ways. A void adoption gives the child nothing in the adoptive family, and, just as importantly, takes nothing away from him in the family of his birth. He remains his natural parents' child with all his rights there intact.

That second limb is the merciful half and it is easy to miss. A child whose adoption fails is not left belonging to nobody.

"By or to a Hindu." The section reaches an adoption by a Hindu and an adoption to a Hindu, so it governs the transaction from both ends.

Section 30: savings

Section 30 provides that nothing contained in the Act shall affect any adoption made before the commencement of the Act, and the validity and effect of any such adoption shall be determined as if the Act had not been passed.

So an adoption made before 21 December 1956 is judged by the classical law, and the Act's conditions do not apply to it. A problem question dated before the Act is answered from the old law, and saying so is the first line of the answer.

What the Act changed in the law of adoption

Worth setting out, because MU can ask what the Act did.

A female may adopt in her own right. Under the classical law a woman could not adopt to herself; she could at most adopt to her husband, and usually only with his authority. Section 8 gives any female Hindu of sound mind who is not a minor the capacity to adopt.

A daughter may be adopted. The classical law knew adoption of a son, whose purpose was religious, to perform the rites and continue the line. The Act permits the adoption of a son or a daughter in the same terms.

The religious purpose has gone. The proviso to section 11(vi) says that the performance of dattahomam shall not be essential to the validity of an adoption. What was a sacrament is now a transaction with statutory conditions.

A guardian may give in adoption, with the court's permission and on the welfare test in section 9(5).

Payment is forbidden, by section 17.

And the whole thing is subject to being void, by section 5.

Those five changes together are the answer to a question about how far the Act altered the classical law of adoption, and the thread running through them is that adoption stopped being a religious act performed for the benefit of the adopter and became a transaction regulated for the benefit of the child.

A worked example

Ramesh, a Hindu, took a boy into his house in 1954 and brought him up as his son, without any giving and taking and without any ceremony. In 1990 he adopted a girl. In 2020 he died, and both children claim as his.

Which law governs the 1954 arrangement? Section 30 saves it: nothing in the Act affects an adoption made before its commencement, and the validity and effect of such an adoption are determined as if the Act had not been passed. So the boy's position is decided by the classical Hindu law of adoption, not by Chapter II.

Which law governs the 1990 adoption? Chapter II, and section 5(1) in terms: an adoption made after the commencement of the Act is void unless made in accordance with the Chapter.

Could a girl be adopted in 1990? Yes. The Act allows a son or a daughter to be taken in adoption, which the classical law did not.

Suppose the 1990 adoption is found to be void. By section 5(2) it neither creates any right in the adoptive family in favour of the girl or anyone else, nor destroys the rights of any person in the family of her birth. She remains her natural parents' daughter and inherits from them.

Ramesh's widow now claims maintenance out of his estate. Whether she is a dependant, and against whom, is Chapter III, and the amount is section 23; both are in [The Amount of Maintenance, and the Dependants].

What it does NOT mean

"Void" does not mean "voidable at somebody's option". Section 5 admits no middle category. An adoption either satisfies Chapter II or it is a nullity, and no lapse of time cures it.

A void adoption does not leave the child worse off. Section 5(2) preserves the child's rights in the family of birth in terms.

Section 30 is not a saving for old rules generally. It saves adoptions made before the commencement, and nothing else in the Act is displaced by it.

"Maintenance" is not confined to food. Section 3(b) includes clothing, residence, education and medical attendance and treatment, and for an unmarried daughter the reasonable expenses of and incident to her marriage.

The Act's definition of a minor is not the adoption age. A minor under section 3(c) is a person under eighteen; the age that governs who may be adopted is fifteen, under section 10(iv).

Quick revision

• ss.1 to 2: the Act extends to the whole of India and applies to Hindus, Buddhists, Jains and Sikhs, and to anyone domiciled in India who is not a Muslim, Christian, Parsi or Jew, with the usual Explanation and the exclusion of Scheduled Tribes.
• s.3: "custom" and "usage" must be continuously and uniformly observed, certain, not unreasonable and not opposed to public policy; "maintenance" covers food, clothing, residence, education and medical attendance and treatment, plus an unmarried daughter's marriage expenses; "minor" is a person under eighteen.
• s.4: the Act overrides any text, rule or interpretation of Hindu law and any custom in force before it, so far as the Act provides, and any inconsistent other law.
• s.5(1): an adoption after the commencement is VOID unless made in accordance with Chapter II.
• s.5(2): a void adoption creates no right in the adoptive family and destroys no right in the family of birth.
• s.30: adoptions made before the Act are untouched and are judged as if the Act had not been passed.
• What the Act changed: a woman may adopt in her own right, a daughter may be adopted, and the religious ceremony is no longer essential.

Test yourself

1. What is the effect of an adoption made after 1956 that does not comply with Chapter II? It is void under section 5(1). By section 5(2) it creates no right in the adoptive family in favour of anyone, and it destroys no right of any person in the family of the child's birth.

2. Who is a minor for the purposes of this Act, and is that the age limit for being adopted? A minor is a person who has not completed eighteen years, under section 3(c). It is not the adoption age: section 10(iv) requires the person adopted not to have completed fifteen, unless custom permits otherwise.

3. What does "maintenance" include? By section 3(b), provision for food, clothing, residence, education and medical attendance and treatment, and in the case of an unmarried daughter the reasonable expenses of and incident to her marriage.

4. Does the Act reach an adoption made in 1950? No. Section 30 provides that nothing in the Act affects any adoption made before its commencement, and the validity and effect of such an adoption are determined as if the Act had not been passed.