To give birth and bring a life in the world, mother nature has made men and women dependent upon each other. There is no science which allows a man or a woman alone to give birth to his or her offspring. However, when it comes to adoption, are men and women dependent upon each other? To get closer to the topic of discussion here, can a Hindu woman adopt a child in India, in her own capacity? Does Hindu Law allow a woman to start a family through adoption of a son or a daughter? Let us dive deeper on the subject and understand the context under the Hindu Adoption and Maintenance Act, 1956, with more questions and better answers with reference to the statute itself.
What is the capacity of a female Hindu to take in adoption?
Section 8 of the Hindu Adoption and Maintenance Act, 1956 discusses the capacity of a female Hindu taking a child in adoption. It provides that any Hindu woman who is a major and is of sound mind is capable of adopting a boy or girl. However, the proviso to this provision lays that if the woman is married and her husband is alive, she cannot adopt a child without her husband consenting to such adoption. Exceptions to such proviso are a husband who has completely renounced the world, ceased to be a Hindu, or has been declared of unsound mind by a Court of competent jurisdiction.
Can a Hindu married woman adopt a child?
As per the capacity of a female Hindu to take in adoption, as discussed under Section 8 of HAMA, the answer to “Can a married Hindu female adopt a child?” is affirmative. It depicts that a Hindu woman can adopt a child as per laws. However, the proviso to the said Section makes an adoption by a married Hindu female subject to the consent of her husband.
Thus, if a Hindu married woman is living with her husband, she needs his consent for adopting a child, regardless of whether it is a son or a daughter. As for a married woman living separately from her husband, she still needs the consent of her husband for adopting a child, unless she gets a divorce, has renounced the world, ceased to be a Hindu (by converting to another religion or otherwise),or has been declared of unsound mind by a Court of Law.
Also explore whether a Muslim couple can adopt a child
Can a divorced woman adopt a child?
There is nothing in the Hindu Adoption and Maintenance Act talking directly about adoption by a divorced Hindu woman. However, there is nothing in restriction as well. Thus, a divorced female who is a Hindu by religion can adopt a child under the Act, since Section 8 of the same talks about “Any female Hindu”. It may be noted that since the woman is legally divorced, there is no need to seek consent of her husband as well.
Can a single woman adopt in India?
A female Hindu who has not married anyone can adopt a child as per Section 8 of HAMA. The provision talks about “Any female Hindu”, as discussed earlier. Thus, a single, or say unmarried woman, is not prohibited by law from adopting a son or daughter. In fact, Section 14(4) clarifies that if adoption is made by a widow or an unmarried woman, if such a woman subsequently gets married, the man is deemed to be the step-father of the adopted child.
Can a Hindu widow adopt a child?
The phrase “Any female Hindu” under Section 8 of HAMA also includes a widow for the purpose of adoption. A Hindu woman whose husband is not alive is not restricted from adopting a child in India. Additionally, even if she plans to remarry someone, Section 14(4) of HAMA states that the husband in subsequent marriage will be deemed as the step-father of the adopted child. Now, the question arises whether adoption by a widow would be applicable to her dead husband? The Supreme Court in Sawan Ram v. Kala Wanti (1967) SCR (3) 687, pressed upon the well recognized principle that a woman belongs to her husband’s family after marriage. Thus, the child adopted by her must belong to the same family. It said that “On adoption by a widow, therefore, the adopted son is to be deemed to be a member of the family of the deceased husband of the widow. Further still, he loses all his rights in the family of his birth and those rights are replaced by the rights created by the adoption in the adoptive family.”
Know more about coparcenary rights of an adopted child
Conditions for Valid Adoption by Hindu Woman
While a female Hindu is legally capable of adopting a child under HAMA, there are certain conditions which need to be fulfilled by her in order to be eligible for taking a child in adoption.
- The adoptive mother should not already have a Hindu son, or grandson, or great grandson alive at the time of adoption.
- In case of adoption of a daughter by a Hindu woman, she should not already be having a Hindu daughter or son’s daughter alive at the time of adoption.
- If a Hindu woman seeks to adopt a child in her capacity, and the one to be adopted is a male/boy, there should be an age gap of at least 21 years between the adoptive mother and the child being adopted. In other words, the woman seeking to adopt a son should be older to him by 21 years or more.
- A single child cannot be adopted by two or more persons simultaneously.
- The child to be adopted by a Hindu woman must actually be taken in adoption leading to a transfer from one family to another.
