Chapter 13

Adoption and Maintenance Act

1956

Son has been assigned a very important position

in Hindu Dharmshastras
Male issue was treated as necessary for
protecting the deceased parents from the
sufferings of the hell and to perform their
funeral oblations
Vedas declare endless are the worlds who
have sons,
there is no place for the man who is destitute
of male Offspring

 Manu has explained the necessity of

a son in the following: Through a son, a man conquers a
world, through a grandson he
obtains immortality and through
his great grand son he gains the
world of the son.
It is the foremost duty of a man, who
is son-less, to have a son by any
means

 Kinds of sons
Earlier writers have mentioned twelve kinds
of sons. A few text writers mentioned two more
kinds. All except two have now become obsolete
They are
(1) Aurasa or legitimate son
(2) Dattaka or adopted
(3)Kritrima Son made, orphan adopted
(4)Kshetraja son begotten on ones own wife by
another man with the consent of the husband
(Niyoga)

 (5)Gudhaja son secreatly brought forth by wife

(6)Kanina Son secretly born to an un married
damsel( Kunthi)
(7)Putrika putra son of daughter
(8) Sahodhaja son born of a wife who was pregnant at the
time of marriage
(9) Krita son purchased
(10)Swayamdatta Where an abandoned son offers
himself to some one
(11) Punarbhava son of a remarried woman
( 12 )Apavidha son abandoned son as accepted by a
person on his own initiative (Karna)

 (13) Kritrima son made ,that is, orphan adopted

(14) Nishad Son Son of a brahmin by his sudra wife
According to Sir Henry Mayne
the entire law of adoption is based on two texts of Manu
and Vashistha and
a metaphor of Saunaka
Smriti and Dharmashastra literature have treated very
little with the subject of adoption
Text of Manu defines an adopted son and states the effect
of it
in a few verses .
According to it an adopted son shall be regarded as
having been born in the adoptive family and all his
relations with the natural family come to an end

 > this text implies three things.

(a) the father and mother can give the child in adoption
(b) the adoptee must be in distress on account of sonless
and
the boy must be of same class
Text of Vasishta
Dharma sutras of Vasishta contain an important text
bearing on the subject of adoption
He has said that
Man formed of uterine blood and virile seed proceeds
from his mother and father as an effect from its cause.

Hence father and the mother have the power to give,

sell or abandon their son

 He also said the one should not give or accept an

only son and
no woman can give or receive a son , except
with the assent of her lord
Besides these two famous texts,
a metaphor of Saunaka has also served to
elaborate the law on adoption
Saunaka requires that the adopted son should be
Putracchayavaha (reflection of a son)
This metaphor has given rise to
different explanations and diversity of judicial
opinions

 as to the qualifications of the persons to be validly

adopted
Nandapanditha in his Dattakachandrika deduced from
this metaphor the rule that
a person cannot adopt his brother, uncle,daughters
son or sisters son. Because they could not have been
procreated by the adopter by the practice of niyoga
Both Dattakamimamsa and Dattakachandrika took as
their criterion the possibility of the adopter procreating
the child by the rules of Niyoga
Sutherland who translated these two works on adoption
translated the relavant passage to convey the sense that
the adopter could have procreated by niyoga or
marriage

 Privy Council in
Bhagwan Singh V. Bhagwan Singh 26.I A 153
held
following metaphor of Saunaka that no one could be
adopted, Whose mother when married, might have
been legally married with the adopted father
Thus the theory under lying adoption,
the results attendant upon it, the persons who can
be adopted, the scope of it
have been traced from the two texts of Manu and
Vasishta and the
Metaphor of Saunaka

 Meaning of adoption
Manu
Taking of a son as a substitute for th e failure
of a male issue. That is transplantation of a son
from the family in which he is born to another
family where he is given by the natural parents
by way of gift
Religious motive behind this is evident from
Baudhayanas text I take thee for fulfilment of
my religious duties, I take thee to continue the
line of my ancestors

 Changes made by the Hindu Adoptions and

Maintenance Act, 1956 in the Law of
Adoptions: 1. A female also may be adopted( Sec 7 &8)
2. A virgin , divorcee, or Widow is entitled
to adopt and the wife can also adopt in
certain circumstances(Sec.8)
3. A male can adopt only with the consent of
his wife or wives (Sec.7)
4.The father without the consent of the
mother, cannot give a child in adoption (Sec.9)

 5. The adopted Child must be below 15

years of age and unmarried unless the
custom permits such adoption Sec.10
6. Ceremony of Dattahomam is not essential
Sec.11
7. the theory of Doctrine of Relation back
has been dispensedwith and the adopted
child comes into existence from the date of
adoption
8 . The adoptive father or mother shall not
be

 deprived of their power to transfer the

property merely by reason of adoption of a
child (Sec13)
9. Provision relating to Registration and the
presumption has been made (Sec.16)
10. If a child of opposite sex is adopted
there must be the difference of 21 years in
the age of the adopter and the adoptee
11. Adopter and the adoptee need not be
from the same caste. Both must be
Hindus

 Essentials of a Valid Adoption (Sec.6)

(1) the person adopting has the capacity and
also right to take in adoption Sec.7 & 8
(2) The person giving in adoption has the capacity
to do so (Sec.9)
(3) The person adopted is capable of being
taken in adoption
(4) The adoption is made in compliance with
the other conditions mentioned in Sec.11,
which includes actual giving and taking is valid

Who can adopt

Sec.7 of the Act says
any male Hindu of sound mind and is
not a minor and
completed the age of 18 years has the
capacity to take a son or daughter in
adoption
If he has a wife living, he shall not adopt
except with the consent of the wife

This section has effected an important

innovation in the Old Law.

Now the consent of the wife or wives

would be necessary for a valid adoption.

Act permits the adoption not only of a male but
also of a female
Recently in Sarabjeet Kabir Vs. Gurumal
Kaur AIR 2009 NOC 889 ( P & H)
Held that if adoption taken by the husband
without the consent of the wife , will be illegal

 Two Points to enable a Male

Hindu to adopt
(a) He must not be a minor
(b) He must be of sound mind
Consent of wife
Under the Old law consent of the
wife was not necessary , but
under the Present Act first time the
consent of the wife has been
made mandatory

 In the following the consent is not

necessary

(a) Where the wife finally and completely

renounced the world
(b) She does not remain Hindu
She has been declared by a court of
Competent jurisdiction to be of unsound
mind
Sec.7 where a person has more then one
wife, the consent of all the wives would be
necessary

Capacity of a female Hindu to adopt

Under Sec.8 a Hindu female could adopt a
child in the following:
-(a) who is of sound mind
(b) who is not a minor
she is not married, or if married whose
marriage has been dissolved, or whose
husband is dead or has completely and
finally renounced the world or has ceased to
be a Hindu or has been declared by a court
ofr Competent Jurisdiction to be unsound mind,
has the capacity to take a son or daughter in
adoption

1) Sound mind
(2) Not a minor
(3) Not married
(4) if she is married her marriage has been
dissolved
(5) her husband is dead
(6) her has been renounced the world finally and
conclusively
(7) Husband has become a convert
(8) Husband has been declared to be unsound
mind by a court of competent jurisdiction

By the enactment of 1956 it was

necessary to get the permission of
the husband
the sapindas assent to adopt a son
by a widow has been
despensedwith.
By virtue of this Act, of 1956 a Hindu
female can now adopt a son or
daughter with her own will She does
not require anybodys consent

 That is, Hindu female right to

adopt a child is limited
because it could be exercised
only
when she is unmarried or
she has become a widow or
during the life time of her
husband

Change (Personal Laws Amendment Act, 2010

Under Sec.7, The capacity of a male Hindu to
take in adoption is subject to the consent of the
wife
That is lack of consent of the wife makes the
adoption illegal
Before 2010 Amendment any female was
competent to take in adoption it was not
subject to consent of husband
Now a female Hindu can take in adoption only
with the prior consent of the Husband

 Whether adoption is personal or for her husband

(a) If an adoption is made by a Hindu female
during the life time of her husband
,it is for the husband because the female could
adopt only when the husband suffers from any
disability
(b) If the adoption takes place before her marriage,
or
her marital relations have come to an end either
by death or by dissolution
or has been declared as null, then it would be her
personal

 Case Brajendra Singh Vs. State of M.P.

AIR 2008 S C 1056

Where a crippled wife was left over by the
husband the very next day of her marriage
She lived with her parents like a divorcee. She
adopted after 22 years when the husband was
still alive
S.C held the adoption by wife was invalid,
as in the case of married women, she cannot
adopt . If there is to be adoption, it must be
made only by her husband though with her
consent

 In every adoption the following conditions

must be complied: (Sec.11)
1. if the adoption is of a son,
the adoptive father or mother by whom the adoption
is made must not have a Hindu Son, grand son,
or great grand son (Legitimate blood relation
or by adoption) Living at the time of adoption
2. Similarly in case of daughter
3. If the adoption is by a male and
the adoption is of a female, the adoptive father is at
least 21 years older then the person adopted

 4. if the adoption is of a female then the

age between the adopter and the adoptee is 21
years
5 Same child may not be adopted
simultaneouly by two or more persons
6.Actual giving and taking must takes
place. With intent to transfer from the
family of its birth to the family which gets
adoption
any adoption made in derogation to the
conditions laid down in Sec.11 would be invalid

 Who can give the child in adoption

Old Law
Power to give the son in adoption vested in the natural
father and the mother
Father could give the son even against the wishes of
the mother,
but the mother could not
After the death of the husband the widow in the
absence of the express prohibition of her husband,
could give the son in adoption
During the life time of the husband,
the wife herself could not give away her son in
adoption nor could consent to give the son in adoption

after the death of her husband or

on his permanent non-traceability, or conversion or
renounciation
The right could only be exercised by her, if she was not forbidden
PRESENT POSITION

Under section. 9 (. Three categories of persons

have been given the right to give a child in adoption
(a) Natural father (b) Natural mother The
guardian
( Testamentary or appointed by court)
Father does not include adopted father

If the father is suffering from

any of the disabilities Under Sec.9
Unsoundness of mind,
Conversion
complete and final renounciation of world
In the above cases
the mother can give
The consent of the mother is essential for
the father to give the child in adoption

 Case Deen Dayal Vs. Sanjeev

Kumar

AIR 2009 Raj 122

Adoption deed was registered ,
but the consent of the natural
mother was not taken and she
was neither a party to adoption
Court held that the consent of
the mother is essential for the
father to give the child in

 In the following consent of the mother is

not necessary
completely and finally renounced the world
Ceased to be a Hindu
declared to be of unsound mind by a court of
competent jurisdiction
In case of nullity or divorce between the
husband and the wife child born to them
could not be given in adoption by the father
alone, even if the child is living with the
father

A mother becomes competent to give

the child in adoption only when
her husband is
(i) Dead
(ii) if living; he
(a) has completely and finally renounced
the world
(b)Has ceased to be Hindu
( c ) Declared to be of unsound mind by
a court of competent jurisdiction

 Guardian
Includes the following three
(a) Guardian appointed by the will
of the childs father or mother
(b) A guardian appointed by the
court
A guardian declared by the court
Adopted parents cannot give the
adopted child in adoption

Sec.9 casts a duty on the court to take

into account the welfare of the child
It should look into the wishes of the child
keeping in view of his age.
An application for permission to give
the ward in adoption may be made in
the District Court
Or Civil Court within whose
jurisdiction the child to be given in
adoption ordinarily resides.

Who Maybe adopted ( Sec .10)

He or She must be a Hindu
He or She has not already been adopted
Not been married, Unless the there is a
custom or usage
He or she has not completed the age of 15
years, unless there is a custom or usage

 Adoption of an orphan
An orphan could also be taken in
adoption which was prohibited under the
old law.
In such cases the guardian of the orphan
has to obtan the permisssion of the
court and thereafter could give the child in
adoption court
No prohibition of adoption of a boy or
girl of unsound mind

An Only son
An only son could also be given in adoption
which was prohibited under the old law,
although the Privy Council had validated such
adoption of such a child

Cermonies for adoption

Under the Old Law the ceremonies relating to

adoption were
(i) Physical act of giving and taking with
intent to transfer the boy from one family to
another
(ii) Datta Homam i.e., oblations of purified
butter to fire

 In Lakshman Singh Kothari Vs. Smt Rup Kunwar AIR

1961 SC 1378

S.C. Held Under Hindu law, whether among the regenerate

caste or among Shudras there cannot be a valid

adoption
unless the adoptive boy is transferred from one
family to another and that can be done only by the
ceremony of giving and taking. The object of
corporal giving and receiving in adoption is to secure
due publicity.
Delegation of power to give and take may be permitted,
when it becomes impossible for a natural father to
handover the adoptive boy physically or to an adoptive
father or mother to receive him


No cancellation of valid adoption
Recently in
Kuldeep Singh & Others Vs. Prethpal
Singh

AIR 2009 J K Noc 1423

Handing over and taking over
by the performance of religious
ceremonies recognised, Under the Act,
such adoption once completed cannot
be cancelled

 Datta Homam
Datta Homam is the sacrifice of the burning
of clarified butter, which is offered as a sacrifice to
fire by way of religious propitation or oblation.
Under the old law it could be performed at any
time after the physical act of giving and taking.
It also could be performed even after the death
of the natural parents In the absence of this
ceremony adoption was not regarded as valid
The Act of 1956 dispenses with the requirement
for the validity

 Adoption does not come into effect

merely by writing a deed with an intent
to give the child in adoption, it requires
actual giving and taking of the child

In Smt. Chandan Bilsani

Vs.
Aftabuddin khan & Others AIR 1996 SC
591
Question: Validity of an adoption by
mother of 86 years old was in question

 The adoptive mother being of very old could not be

produced in the court for evidenc e.
three other witnesses, who were present at the
time of adoption were examined.
One of them were priest at the time of adoption and
2nd was a person who was also present at the time
of adoption
3rd when the deed of admission of adoption was
executed by adoptive mother and was an attesting
witness to the deed
held that entire evidence on record estd., that
adoption took place by ceremony of giving and
taking, Hence adoption was held valid

 Effects of adoption (Pre Act)

Adoption has been spoken of as new birth
It implies complete severence of the child adopted
from the family in which he is born and complete
substitution into the adoptive family as if he is
born in it
The adopted son acquires the rights of a son in the
adoptive family, he loses all the rights of a son in his
natural family including the right of claiming any share
in the estate of his natural father or natural
relations. He could not retain his name after having
been given in adoption nor could he carry any
property

 Dwamushyayana adoption
It is a form of adoption under the old
law. In this the natural father might
stipulate that inspite of adoption, he
would continue to be also the father
of the child. This means the child
would be treated as child of two
persons. . The natural father and the
adoptive father . This is called a
Dwamushyayana adoption

 Illatom adoption
This form of adoption is prevalent in Andhra
Pradesh among Kammas. The son-in-law is
adopted in this form In this form usually he
assists the adoptive family in agricultural
operation, lives in adoptive family and in
view of these services takes a share as
adopted son
The present Act does not recognise this form
of adoption . Its express provisions postulate the
adoption only of a son or daughter. So this form of
adoption must be treated as obsolete

 Avaruddha Stri

She is an exclusively kept concubine. At one time it was thought that

to be such she should be living in the family home of the
paramour.
The Privy council pointed out in Nagabai Vs. Monghi Bai (1926 )
P.C.73
that there is no such condition and that all that is required is that

she should b in the exclusive keeping of the paramour

It was also a question whether a woman could be regarded as
an Avaruddha Stri when she is a married woman, who has
deserted her husband to become the exclusive mistress
of another
The High Court of A.P has pointed out the that even such a
person may be treated as Avaruddha Stri . So, . it is clear that an
exclusively kept mistress is an avaruddhha stri

 Doctrine of Relation back

This doctrine says that a son adopted by the
widow under the authority of her husband was
deemed to have come into existence in the adoptive
family on the day of the husband died. The adopted
son was put in the position of posthumous son and
all his relations in the adoptive family related back
to the date of the death of his adoptive father by
legal fiction.
This theory was based on a doctrine that there
should be no hiatus( break) in the continuity of the
line of adoptive father

 This has relevance with respect to

succession of the property of the
adoptive father
Exceptions: (1) Lawful alienation
(2) If the property by inheritance
went to a collateral, the adoption
could not divest the property which was
vested in the heir of the collateral

 Supreme Court has explained the meaning of

this doctrine in
Sripad Gonjam Vs. Datta Ram Kasi Nath

AIR 1974 S C 878

When a widow adopts a son to her
husband, doctrine makes sonship
retrospective from the moment of the
death of her late husband
The adopted son is deemed to have born on
the date of the death

 The proposition that emerge is:

A widows adoption cannot be deprieved by an
anterior partition of the joint family and the
adopted son can claim a share, as if he were
begotten and was alive when the adoptive father died .

Abolition of the doctrine:- the consequence of

this doctrine was divestment of estates vested in by
a legal fiction.
Law commission suggested for the abolition of
this doctrine. This was abolished by H A M A 1956.
and brought several changes and has given equal
rights to Hindu Women

 Effect of adoption Sec.12

Doctrine of Relation back was abolished by
Sec.12 Of H A M Act 1956
The adopted son shall be treated as aurasa
son from the date of adoption of the adoptive
father
He severs all the ties from his natural family
The adoptive 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

 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,
Adopted child shall not divest any
person of any estate which vested
in him or her before the adoption

 Case Sawan Ram Vs. Kalawathi

AIR 1967 SC 1781

Facts K, a Hindu died in1948 leaving behind
his widow ,W without children. She took her
husbands property as limited estate owner.
In 1954 W, widow made a gift of her
husbands property to her niece N .
Collaterals of K, the deceased, challenged this
transaction through asuit, on the ground that W ,
was only limited owner of the estate. She could
alienate the property only for legal necessity or
for the benefit of the estate

 Since none of the two existed

gift made by W was held to be invalid by the
trial court
While appeal was pending W adopted the
son of N in 1956, later W died.
Collaterals won the appeal and claimed the
recovery of property from N
Sc. Held the adopted son being like a natural
born son of her deceased husband also
could claim back the property as heir from
N and the collaterals would not get the property

 Case Sitabai Vs. Ramachandra

AIR 1970 SC 343

two brothers constituted coparcenary, One of
them died issueless, leaving behind widow.
The widow adopted a son. After some time the
other brother also died leaving behind his
widow and his illegitimate son.
The son adopted by the first wife was held to
be the sole surviving coparcener of the family
and thus entitled to inherit the entire property.
The illegitimate son cannot become a
coparcener

 Case Vijaya Lakshamma Vs. B.T. Shankar

AIR 2001 SC 1424

Supreme Court held
that the adopted son Under Sec.12(c)
cannot divest any person of any property
which had vested in him, before he was
taken into adoption and consequent
protection of the rights vested with the
widow in the property left behind by the
deceased husband. No injustice could be said
to be caused to the widow

Ante adoption Agreement (Sec.13)

A n agreement made before adoption. The parents
will have absolute right of disposal in the properties
belonging to them
These rights will not be curtailed by the adoption of
son or daughter.
However the law allows that such right may be curtailed
by an express agreement to the contrary made
between the adopted child and the adopting father
This section is only applicable to the property belonging to
the adoptive parents of Joint family in which neither the
father nor the mother had an absolute disposing power

 S.C in Ugre Gowda Vs. Nage Gowda

AIR 2004 SC 3074
observed an adoption of a son does not
deprive the adoptive mother of the
power to dispose off her separatee
property by transfer or by will
Hence such adopion would not divest
the widow of the suit property which
vested in her by succession on the death
of her husband

 Determination of adoptive parents (Sec.14)

(1)If a Hindu dies, if his wife adopts she shall
be deemed to be the adoptive mother
(2) If the adoption has been made with the
consent of more than one wife, the senior
most wife is the natural mother
(3)In case of widower or bachelor, any
person whom he subsequently marries
(4)In case of widow or unmarried woman
any person whom she marries subsequently

 Annulling an adoption (Sec.15)

A valid adoption cannot be cancelled by
the adoptive father or mother or by any
other person, nor the adopted child can
renounce his or her status as such and
return to the family of his or her birth
Doctrine of Factum Valet, It is some
times invoked in the law of adoption
In Sri. Balusu Vs. Sri Balusu ,22 Mad.
(P.C) 398

 The question arose whether an only son

could be given in adoption
Mitakshara forbids the giving of only son
in adoption
Nayeka Putro Deya

(an only son should not be given in

adoption
Na Jyeshta Putro Deya
( The eldest son should not be given in
adoption)

 In that case only son was given in adoption.

It was argued that though there was a Hindu Law text
forbidding such adoption, the infirmity was cured by the
application of the Doctrine of Factum valet, which
means what ought not to be done is Valid , when
done
According to Hindu Jurists a fact is not changed by a
hundred texts
Privy council considered this doctrine to be applicable
only to directory texts. It is not applicable to
mandatory texts.
If the text in question is only recommendatory, then the
maxim may be applied and the adoption can be upheld

It was held that this text was only directory and so

the adoption of an only son

was

held to be valid

not withstanding the prohibitary text of the Mitakshara

It has no application to Mandatory texts

Lallan Ram Vs. Gobri Ram ( A I R 1972 All.540)

The texts regulating

the capacity to
the capacity to
the capacity to
are mandatory
Their violation

give
take
be given in adoption
cannot be validated by the application

 of the Doctrine of Factum Valet

Similarly the formality of giving and
taking is essential for adoption
This doctrine cannot be applied to
cure an infirmity in this regard

Wifes Right to maintenance (Sec.18)

As a rule the Hindu wife is not entitled to separate
residence and maintenance from her husband
But Under Sec.18 of H A M Act 1956
she is entitled to separate residence and maintenance,
After the decree of divorce or judicial separation
Grounds for separate residence and maintenance of a
Hindu wife under Sec.18 of H A M Act 1956, are equal with
those under Sec. 13(Divorce) Of Hindu Marriage Act, 1955

 Sec.18 (2) Of H A M Act 1956

(a) Desertion (b) Cruelty(c) Husband
suffering from leprosy (d)Another
wife living (e)Keeping concubine (f)
Husband is habitual debaucher (g)
Conversion (h) any other cause
She is not entitled to
maintenance in the following
(i) Unchastity (ii) Conversion

 Provision of maintenance of a
Hindu wife under other Statutes
Sec.125 Cr.P.C 1973
Sec.24, H. M. Act 1955
Protection of Women from Domestic
Violence Act 2005

Chapter 14
Inter country Adoptions
H A M Act 1956 applies only to Hindu
No such law governing adoption by
Muslims, Christians or Parsis.
No statutory provision providing for
adoption of a child by foreigners
living abroad
In adequacy of the law of adoption
relating inter-country adoption
was highlighted by the Gujarat
High Court

 in Re, Rasiklal Chaganlal Mehta, AIR 1982

Guj 193
It is a common knowledge that such adoptions
are on the increase
It is a welcome trend that poor and the needy
children to get an opportunity to get affluent
family homes.
such adoptions have also opened
opportunities for unscrupulous agencies to
commercialise the practice and abuse and
exploitation of children

Rasiklal case

German couple wished to adopt a

girl from an orphanage at Rajkot and
took her to Germany
Applicants tried to explore Sec.9(4) H
A M Act 1956
To Overcome the hurdle, which requires
that the adopter under the Act has to be
a Hindu, they even adopted Hinduism

 They had to shuttle between the passport office and Courts.

They had to file another application under the Guardian and Wards Act, 1890
The Division Bench after detailed considerations of all aspects of such adoption came
out with various guidelines.
They are

inter-country adoptions
a) a notice should be issued to the welfare agency
(b)Provision in the adoption order for periodical report
relating to the maintenance and well-being of the child
the court must ensure that the adoption is legally
valid under the laws of both the countries and that
the child should be able to immigrate to that country
and also to obtain the nationality of the parents
In case of


In Lakshmi Kant Vs. Union Of India

AIR 1984 SC 469

S.C Laid down the normative and procedural
safeguards in regard to Inter-country adoptions
The case arose out of a letter written by a lawyer
to the S.C.
His letter was treated as a petition
This letter was based on a report published by The
Mail (from London), which revealed that hundreds
of unwanted babies were being transported from
the slums of Calcutta to the U S A.

 Court laid the following guidelines: (i) the application of foreign parents
wishing to adopt Indian Children should be
scrutinised by the Government recognized
agencies
(ii) antecedent of the applicants(their family
background, financial status and health) should
be verified
(iii)Age of the child to be given in adoption,
preferably below the age of three, though the
court felt that no hard and fast rule

 (iv) A progress report of the child along with the

recent photograph should be provided
quarterly during the first two years
half-yearly for the next three years
(v)The parents should either deposit or enter
into a bond for a certain amount, to enable the
child to be repatriated , if such need arises
(vi)The entire proceedings on the application
should be confidential
as soon as the order is made on the application,
the papers and documents should be sealed

 Owing to the difficulties faced by the some agencies,

Supreme Court again made certain
clarifications and alterations
(i) Scrutinizing agency appointed by the Court
is to be an expert body having experience in the
welfare of the child.
agency should not in any way be involved in
the placement of children in adoption
(ii) The agency engaged in placement of children in
adoption should not readily assume that
children, including the cradle babies who are
abandoned are legally free for adoption

 Such children must be produced before juvenile

court,
to make further inquires In States
where there are no Children Acts in force,
such children should be referred to the social
welfare department
for making further inquiries for tracing their
parents or guardians with in three months
Until the report from the juvenile court or the
social welfare department declaring such
children as destitutes or abandoned, these
children cannot be given in adoption

 (iii) No court shall entertain an

application of a foreigner as a
Guardian of a child,
who has been brought from another
State, if there is a social or Child
Welfare Agency in that other State,
which has been recognised for intercountry adoption by the Govt.of. India
(iv) Representatives of foreign Social
Welfare agencies should be:-

a) Indian citizens with a degree or diploma in social work

Coupled with experience in child welfare
(b) geographical area of operation of Social or Child

Welfare Agency should be limited, so as to attend

the functions diligently
General Power of Attorney to act in India on
behalf of the Social or child welfare agency, and
also have the authority to operate bank
accounts in the name of the foreign agency with
the permission Of the Reserve Bank of India
(d) Not be permitted to receive children directly
from the parents

 (e) Representatives should be recognised by the

Certrl Govt. on the condition that the various
requirements laid down are complied with.
(v) Where the child is handicapped , the court
dealing with an application for appointment should
not insist on foreign parents or even one of
them coming down to coming down to India for
approving the child
(vi) Effort must be made to give a child in
adoption to Indian parents ,
before considering the possibility of placing it in
adoption with foreign parents

The implementation of these

amended guide lines also was not
without problems and difficulties
Accordingly the Supreme again in
Lakshmi Kant Vs. Union of India
AIR 1987 SC 232
Issued some new directions in the
procedure to be followed for the
adoption of children foreign and
Indian parents

 They are:
(a) payment of some amount to the
scrutinizing agencies for their services
(b) formulation of procedure for
prevention of illegal trade of babies
maintenance of list of Prospective
Indian Parents wishing to adopt
(d) notice to be published in regard to any
adoption application- whether foreign
adoption or adoption under HAMAct 1956

 (v) the time required for processing of the

adoption applications to be reduced
(vi) the reimbursement of expenses incurred by
Recognised Placement Agencies to be raised to
Rs.6000 and so on
These guidelines do not apply to adoption of
children living with their biological parents

S.C in Anokha Vs. State of Rajasthan,

AIR 2004 SC 2820

has to deal with the application for adoption under
Sec.7 of the Guardian and Wards Act1890

and dispose of the same after being satisfied that

the child is being given in adoption voluntarily and
would be legally adopted without any inducement
or consideration
That Court would also have to satisfy on the basis
of evidence and documents submitted by the foreign
adopter, that all arrangements would be made in
the best interests of the child.
In this case
application by the Italian couple .
They were appointed as guardians with liberty to
take the child to Italy for being adopted under
their laws

 The Child was given in adoption by the

widowed mother of the child.
The Court however required the couple
to comply with certain conditions before
they removed the child out of the country.
Ex. Affidavits and
undertakings to adopt the child within 2
years, deposits etc., just to ensure the
interests of the child until it is legally
adopted

 Despite the guidelines of the Supreme Court,

inter-country adoptions are not still easy,
long procedural delays expenses at every
level, would cause dissuade and discourage
even very genuine and keen couples who wish
to adopt
abandons, destitute Indian children.
In a recent application filed by the Missionaries
of charity, a society estd., by Late Mother
Teresa the various difficulties being faced by
adoptive parents have been pointed out.

It has been highlighted that many

Indian Courts were not accepting
documents executed and
authenticated abroad as a result of
which adoption of children by foreign
parents are being delayed.
A plea has been to simplify the
procedure to prevent unnecessary
delay, expenditure and harassment to
foreign couples who wish to adopt

Allowing the appeal, the S.C , in L.K. Pandey 2010 has

directed the courts dealing with adoption to accept
documents authenticated by the officers
competent to Issue certification by Apostille in the
country of their execution as provided in the Hague
Apostille Convention.
A direction has been given to dispose of these
cases within the time
It is unfortunate that the adoption of Children Bills
in 1972 and 1980 which had provisions enabling
foreigners to adopt a child in India and take it to
their country, had to be abandoned because of
opposition

 A uniform adoption law applicable to people belonging to all

religions and with provision of inter-country adoption with
proper safefguards is needed if poor, destitute, abandoned
children are to be rehabilitated in a legal and safe manner
There are innumerable couples who want to adopt, and there
are unlimited number of children who need the comfort of
home and warmth of a family,
but in the absence of proper laws,
former do not get to adopt the latter do not get the home;
Absence of suitable laws
encourages commercialization and touts, which neither in the
interest of the couples nor the children

@@@ @@@@@

Guide lines of 2015( P D F )

Abbrevations
State Adoption Resource Agencies (SARA)
Child Welfare Agency( CWC)
Dist. Child Protection Units (DCPU)
Stat Adoption Agencies(SAA)
Foreign Agencies (FA)
Central Agencies( C A)
HOME STUDY Report( HSR)
Prospective Adoptive Parents ( PAPs)
Authorised Foreign Adoption Agencies (AFAA)
Child Study Report( CSR)
State Child Protective Units
Go To PDF
--------

Chapter 15 Hindu Minority and

Guardian ship Act 1956
Introduction
Ancient Hindu System hardly a
developed law on minority and
guardianship
Minor children were always under
the protection of the Karta of
the Jointly
He was obliged to protect the
interests of both the minors and
the women even after the death of

 Minor children outside the joint family used

to study in the Gurukula or the Ashram
where the guru was the protector
Dharmashastras do not of speak of the
protection or the property of the minor
children
King was the supreme guardian as such
used to protect the person and property
of every one who was in need of such
protection

 Modern law of guardianship has been drafted by the

British Government

It has its basis in Mohri Bibi Vs. Dharmodas Ghosh ,

30 Cal.532 Pc
.Because of the incapacity and proper care of their
welfare the law of Guardian ship has been evolved
It provides for
lawful guardian, natural, or testamentary guardian
In first instance, authority was given to the father
both as regards the person as well separate property of
the minor children ,
in his absence, mother is the natural guardian

 In the absence of both father and the mother,

court could appoint guardians who were nearest to
him in blood
first from the paternal side, or in their absence
from the maternal side
In case of minor wife, the husband, whether himself
adult, or minor, was her natural guardian
Guardian and Wards Act 1890 more or less
retained this position in the sense
if the father or the husband was not found fit to act
as natural guardian, their right could not be disturbed..
that is they could appoint a testamentary adoption

 But the Guardian and Wards

Act,1890 made certain changes
also in the position of the
natural Guardian.
It is important to remember that
the
Act of 1890 is still the basis of
the rights and duties of a natural
or testamentary guardian or
guardian appointed by the court

 Parliament enacted the H. M. Act

1955

Till 1956, Hindu Law on Minority

and Guardian Ship had several
defects.
Due to enforcement of
H.M.Act,1955, it became
necessary to enact Hindu
Minority and Guardianship Act
removing the defects in the ancient

 Changes made by 1956 Act

(1) The 1956 Act has improved the status of
mother as natural guardian,
Even if the father appoints a testamentary
guardian, upon his death, it is not the
testamentary guardian, but the mother who
will act as natural guardian Sec.9(1)
If the mother leaves behind a testamentary
guardian, it is the guardian appointed by her
who will take precedence over the
guardian appointed by the father (sec.9(2)


Formerly the father could
disentitle the mother from
natural guardianship by his will
Under the Act of 1956
the father cannot deprive the
mother from assuming
guardianship of the minor by
appointing a testamentary

 (2) Old Hindu law recognised

the powers of a De facto

guardian of a minor to
intermeddle with his estates
which was held to be
co-extensive with that of the
natural guardian

 Sec 11 of Hindu Minority and Guardian ship Act,

1956 forbids de facto guardian from dealing
with or disposing of the properties of a Hindu
minor

(3) Under the old law the father did not lose
custody of his child merely because of his
change of religion
Under Proviso to Sec.6 of the present Act no
person shall be entitled to act as guardin, if he or
she has ceased to be a Hindu or has renounced
the world by becoming a sanyasi

4) Old law father used to exercise unlimited powers

with respect to minors person and property under
them.
Powers of testamentary guardian have also been
considerably limited. He cannot alienate the property
of a minor without the prior permission of the court
Sec.8(2) the power of the natural guardian regarding
alienation of the immovable property of the minor
cannot be exercised without the previous permission
of the court
It may be noted in this regard the powers of the natural
guardian have been considerably restricted under the
present law

 H.M and G. Act 1956 does not codify

the entire law of guardianship
applicable to Hindus, but amends
and supplements the provisions of
Guardian and Wards Act, 1890
Sec. 2 of the Act says that the
provisions of the Act shall be in
addition to the Guardians and Wards
Act of 1890

Meaning of Guardian A person having the

care of the person of another or of his property
or of both (Sec.4)
Sec.4 (b) of H A M A defines the word Guardian
It mentions four kinds of guardians
(1 )Natural guardian
(2) Testamentary guardian
(3) guardian appointed or declared by the court
( 4) empowered to act as guardian under Court of
Wards

 Natural Guardian

Sec.6(a) in the case of boy or an unmarried girl

father and after him the mother

Provided that the custody of the minor, who has not
completed the age of 5 years
shall ordinarily be with the mother
(b) in the case of illegitimate boy or illegitimate
girl
the mother and after her, the father
(c)In the case of married girl, the husband

 Provided that
no person shall be entitled to act as the
natural guardian of a minor Under this secion
(a) if he has ceased tobe a Hindu or
(b) if he has completely and finally
renounced the world by becoming a
hermit(Vansprastha) or an ascetic ( yati or
Sanyasi)
Proviso Father and mother do not
include Step father and Step mother

 In Gita Hariharan Vs. Reserve Bank Of India

AIR 1999 Sc 1149

S.C adopting the harmonious construction
that the word after in Sec.6 (a) Of H M G Act,
need not necessarily mean after the life time
but in the absence of.
If the father is not in the charge of actual
affairs of the minor, either because of his
indifference, or by virtue of mutual
understanding between the parents, or because
of some physical or mental incapacity

 Or because he is staying away from

the place where the mother and the
minor are living then in all such
situations, the father can be
considered as absent, and the
mother can act validly on behaif of
the minor as the guardian
Predominant consideration in every
case would be the welfare of the
minor

 Disabilities to be a guardian
According to Sec.6 of the Act

(a) Apostasy Sec. 6 Proviso(a)

(b) Civil Death Sec.6 Proviso (b)

(c) Minority Sec.10

(d) If the guardian is not taking

care of the

Minor Sec.13 (2)

 Powers of a Natural Guardian ( Sec.8)

!) Natural guardian of a minor has to do
all acts which are necessary and
reasonable and for the proper benefit of
the minor or for realisation, protection or
benefit of the minors estate,
but he can in no case bind the minor by
a personal covenant
2) The natural guardian shall not, without
the previous permission of the court

a) mortgage or charge or transfer by sale,

gift, exchange or otherwise any part of the
immovable property of the minor;or
b) lease any part of such property for a term
exceeding 5 years or for a term extending
more than one year beyond the date on which
the minor will attain majority
3) disposal of immovable property by a natural
guardian, in contravention of Sub.Sec (1) & (2)
is
voidable at the instance of the minor or any
person claiming

 4) No court shall grant permission to the

natural guardian to do
any of the acts mentioned
sub.sec(2) except in case of necessity or for
an evident advantage to the minor
5) for obtaining the permission of the
court Under Sub.Sec(2) Guardian and
Wards Act, 1890 shall apply and in all
respect it was an application for obtaining the
permission of the court under sec.29 of the Act ,
and in particular

(a) proceedings in connection with the

application shall be deemed to be proceedings
under the Act within the meaning of Sec.4 A thereof
(b) the court shall observe the procedure and
have the powers specified in Sub.sec. (2) (3) and (4)
of Sec.31 of the Act; and
(c) appeal shall lie from an order of the Court (
City civil court or District court)refusing
permission to the natural guardian to do any of the
acts mentioned in Sub.Sec (1) of this Section
to the court to which appeals ordinarily lie from
the decision of the court (Appellate court)

In this Section Court means the

City Civil Court
District court or
a Court empowered
under Sec.4-A of Guardian and
Wards Act 1890

 Under the Old Law

powers of natural guardian to alienate minors
property was limited and qualified.
It could only be exercised in case of legal necessity
or for the benefit of the estate
Arun Kumar Vs. Chandravathi Agarwal AIR
1978 All.221
Court held that the
provisions of Sec.6 exclude a Hindu Minor
having a natural guardian as defined by the Act,
for his undivided interest in Joint family
property

That is, this would exclude a

natural guardian applying for
permission of the Court to
alienate the property of the
minor under Sec.8(2).
that is, so long as the Hindu law
shall apply, a father or a natural
guardian can alienate a minor
interests in a coparcenary

 (1)!Necessary or reasonable and proper acts

for the benefit of the minor
this section refers to the person of the minor
A natural guardian has the power to place such
restraint on the minor in regard to his
upbringing, education and health as may be
necessary or reasonable or for the proper
benefit of the minor.

Power to delegate
He has the power to delegate to a tutor or school
teacher or a friend with a power to revoke

 He can look after the property and

realise the income. He can do any act
towards the protection of the
property of the minor or the welfare
of the minor himself
But he cannot enter into a contract
which may bind the minor
Contract entered into by the natural
guardian for the interest of minor cannot
be executed against him

In Manik Chand Vs. Ram Chand AIR 1981 SC 519

Sc Clearly laid down that after passing of 1956, the
natural guardian has been empowered to do all
such acts which are necessary for the welfare and
benefit of the child.
Such acts may be necessary or reasonable for the
interest of the minor. He can even bind the minor
by a covenant if it is so necessary
Benefit of the estate
A transaction to be binding on the family must be one
which not only confers a benefit on the estate, but
it is necessary for its good management

 Power to enter into contracts

Power to enter into contract of loan on behalf of minor
so as to bind the minors estate is concerned there was a
conflict of judicial opinion under the Pre-Act law

Inder Chandra Vs. Radha Kishan 10. Cal. 507

Privy council held that the

covenant of the mother of the minor

while selling minors property, to indemnify the
purchaser, who sued the minor on attaining majority
upon his personal undertaking against all future
claims of the Government revenue on the property
was not binding on the minor

 following this decision it was held

by Bombay High Court
that no decree could be passed
against the minor on the basis of
the contract of loan entered into
by his guardian
Patna and Madras High Courts
dissented from this view taken in
Hanuman Prasads case (1856) 6
MIA 393

 Plaintiff sued to set aside a usufructary

mortgage executed by his widowed mother
during his minority in favour of the defendant
High court held against defendant on the
ground that the mortgage was not executed
by the minors guardian in her capacity as
guardian
Privy Council set aside this decision, P.C
treated this mortgage as one created by the
mother of the plaintiff only in her capacity as
guardian

Privy council remanded the suit to

lower court , after stating the legal
principles applicable to this case
Lord Justice Knight Brucce of the Privy
Council enunciated the following principles; (i) the guardian has a limited or qualified
power to create a burden on the minors
property
(ii) This power canbe exercised in the
case of necessity

 (iii) the actual pressure on the estate, the

danger to be averted or the benefit to be
conferred upon it, in the particular instance,
is the thing to be regarded

Lender is not concerned with the

precedent mismanagement of the
property by the guardian, His transaction
cannot be attacked on the ground that
the necessity would not have arisen, if
the manager had prudently managed the
property

 (iv) the creditor should act honestly . If

he was himself a party to the prior
mismanagment of the estate, he cannot take
advantage of his own wrong
(v)
Inquire and satisfy
The lender has to satisfy himself , that the
manager is acting for the necessity of the
loan . after satisfying himself bonafide that the
manager is alienating or raising funds to meet
a necessity, the creditor lends money, his
transaction is protected

 (vi) The lender is not bound to look to the actual application

Even if it turns out that he has been deceived by the guardian and that
there is no real necessity or the funds were misapplied, the

lenders position is safe

Delhi High Court in

Rumal vs. Sriniwas AIR 1985 Del. 153 has held that
any contract executed by the guardian of the
minor can be specifically enforced by the minor
or against the minor.
Under the law the natural guardian has been
empowered to enter into the contract If the
contract in the welfare of the minor, it will be
binding and will be enforceable

 Compromise by natural guardian

A guardian is competent to enter into a compromise
on behalf of his ward
Bishun Deo Vs. Seogeni Rai, AIR 1951 Sc 285
Sc has held that it is not necessary for the next
friend or guardian of a minor to obtain the
sanction of the court Under Order 32 Rule 7
C.P.C to begin negotiation for a compromise or
even to conclude a provisional agreement with
the opposite side with a view to compromise. It is
enough , if the court sanctions the concluded
compromise as beneficial to the minor,

 Even where the mandatory provision of

Order 32 , Rule 7 is ignored, the resultant
agreement is not a nullity, but is good ,
unless the minor chooses to avoid it.
Acknowledgement of debt by a guardian
A natural guardian of a minor as well as
a guardian appointed by the court has the
power to acknowedge a debt or to pay
interest on a debt so as to extend the
period limitation

 f or protection of the minors property. Lawful

gua rdian in Sec.21(1) of Indian Limitation Act
1908. includes agent duly authorised in this
behalf in Sections.19, 20 0f 1908 Act
Family agreement
Natural guardian has the power to enter into
family settlemnt on behalf of a minor,if it is in the
nature of a bonafide compromise
Arbitration
Natural Guardian has the power to refer to
arbitration, if it is for the benefit of the family

 Power of alienaion
Natural guardian of Hindu minor has
power in the management of the
estate to sell or mortgage any part
of the estate in case of necessity or
for the benefit of the estate
Provided the natural guardian has
taken permission of the court prior
to such alienation as provided in Sec.
8 (2)

 In Janardhan Pillai Vs. B.A. Radhamma AIR

1988 Ker.303
Sale of minors proprty effected by his natural
guardian without obtaining the specific sanctions
of the court under Sec.8(2) is an act which is
prohibited by law and is in valid
However in the suit filed by the minor on
attaininng majority, the plaintiff is entitled to
recover possession of the property
Invalidity does not mean that the plaintiff can
keep the property and the consideration

 Periyanayagam Vs. Rajendran &

Others

Air 1990 NOC . 8 Mad

Any disposal of immovable
property by a natural guardian in
contravention of Sub.Sec. (1) or (2)
of Sec.8 is voidable at the instance of
the minor or by any person claiming
under him

 Testamentary Guardian
Guardians appointed by a will of the natural
guardian.
Sec.9 of the Act of 1956 says that
(1) A Hindu father is entitled to act as natural
guardian , may by will appoint a guardian for the
person or property of the minor or both
(2) Such appointment shall have no effect, if
he pre-deceases the mother. But shall
revive if the mother dies without appointing
by will any guardian

 (3) A Hindu mother or widow entitled to

act as natural guardian of her legitimate
children may by will appoint a guardian,
if the father has become disentitled to act as
such, in respect of minors person or property
(4)A Hindu mother entitled to act as the
natural guardian of her illegitimate
children may by will appoint a guardian in
respect of minor or his property
(

 (5) Such appointment will have

the effect after the death of the
father or mother. The guardian
shall exercise all the powers of a
natural guardian with the
restriction if, any specified under
the Act
(6 ) the right of a guardian so
appointed will cease, where the
minor is a girl, after her marriage

 Who May Appoint

(a) Father, natural or adoptive
(b)Mother natural or adoptive
(C) Widowed mother natural or adoptive
Powers of a Testamentary guardian
Powers of testamentary and the natural
guardian are the same,
Except
the power of testamentary guardian to deal with
the property belonging to the minor is subjected
tp the restrictions imposed by the will

In Ramanathan Vs. Palaniappa AIR 1939Mad.531

A executed a will appointing B, as executor of the

will
and authorising his (As) widow to adopt a son..
B, appointed an agent for conducting the business,
and borrowed from a Bank executing a promissory
note along with C, each taking half of the money. C
had to pay the whole amount to the bank
After paying the whole amount to the Bank, C
sued the minor for contribution
.

 The minors plea was that B

or his agent could not borrow
so as to bind his estate.
It Was held
that B was a testamentary
guardian and had the powers of
a natural guardian.

 The appointment of an agent for a business

of this kind was held to be within the power
of a natural guardian under Hindu Law.
Continuation of business was also within
the power even apart from the directions
contained in the will.
The borrowing was for the benefit of the
minors estate and so the suit for
contribution was decreed.

Testamentary guardian can exercise powers

of natural guardian Under Sec.8(2)

Removal of Testamentary Guardian

Testamentary guardian can be removed by the court

under Sec.39 0f the Guardian and wards Act.

They are

(1) Abuse of trust

(2) Failure to perform his duties
(3) Incapacity to perform the duty
(4) ill-treatment or neglect to care of the ward
(5) disregard of the provisions of the Act
(6) Conviction in case of an offence for defect of
character
(7) Having an adverse interest

 8)Ceasing to reside within the

local limits of the Court
(9) Insovency or bankruptcy
In addition H M G Act 1956
mentions
( i) if he has ceased to be a
Hindu
(ii) Renounced the world

 De facto guardian
He is neither a legal guardian nor a testamentary
guardian,nor a guardian appointed by the court.
He is a person who by himself, takes over
the management of the affairs of the minor,
as if he was a natural guardian.
He is not an intermeddler,
nor does an isolated act of any person in
regard to minors property make him de
facto guardian.
Continuous course of conduct is necessary.

 Nothing has been mentioned about the de facto

guardian , in the old texts
In 1949 PC 218 Justice, Kania, had observed that
Hindu law tried to find a solution out of two difficult
situations,
(1) when there is no legal guardian of the minor
(2) a person having no title could not be
permitted to intermeddle with the minors estate so
as to cause loss to him

The solution to the above problem was found

out by lending recognition to de facto
guardians

 A person having the care of the properties of a minor,

but who is neither a natural, guardian, testamentary nor
guardian appointed by the court is only a de facto guardian
and the restrictions under Sec11 will apply to his acts
Sri Aurobindo society, Pondicherry

Vs,

Ramdaso Naidu, AIR 1980 Mad.21

Held De facto guardian is in juxtaposition to de jure
guardian. Both are related to the minor in the normal course.
Not casually.
But de facto guardian has no legal authority to meddle
with the property of the minor in any way , whereas the
dejure guardian has all such powers to his credit


In above case, the mother acting as
a de facto guardian sold away the
immovable property belonging to the
minor, while the father was alive
It was held that even if the mother
purports to assert to exerxise the right
in the capacity of de facto guardian, all
such transactions done by her in the
exercise of the right of
de facto guardian, would be set aside

 Se.11 Of HMGAct 1956 expressly abrogates the power

of de facto guardian to alienate or to deal with the
property of a Hindu minor after the commencement
of this Act

An alienee from de facto guardian would now be governed

by this section. Any alienation made after the
commencement of this act wold be void ab initio. The
alienee would acquire no title to the property.
A de facto guardian has no power to acknowledge
debt on behalf of the minor, neither to make a gift of
minor s property, nor power to acknowledgethe debt on
behalf of the minor

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