Hindu Adoptions
and Maintenance Act (1956)
From Wikipedia, the free encyclopedia
Hindu Adoptions and
Maintenance Act
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Enacted by
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Status: In force
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The Hindu Adoptions and Maintenance Act was
enacted in India in 1956 as part of the Hindu Code Bills.
The other legislationsenacted
during this time include the Hindu Marriage Act (1955), the Hindu Succession
Act (1956), and the Hindu Minority and Guardianship Act (1956). All of these
acts were put forth under the leadership of Jawaharlal Nehru, and were meant
to codify and standardise the current Hindu legal tradition. The Adoptions
and Maintenance Act of 1956 dealt specifically with the legal process ofadopting children by a
Hindu adult, and with the legal obligations of a Hindu to provide
"maintenance" to various family members including their wife or
wives, parents, and in-laws.
Contents
Application
This act applies to Hindus and all those considered
under the umbrella term of Hindus, which includes:
·
a Hindu by religion in any of its forms or development;
·
a child legitimate or illegitimate one of whose parents are Hindus,
Buddhists, Jains or Sikhs and has been so brought up;
·
an abandoned child, legitimate or illegitimate of unknown parentage
brought up as a Hindu, Buddhist, etc.; and
·
a convert to the Hindu, Buddhist, Jain or Sikh religion.
The act does not also apply to adoptions that took
place prior to the date of enactment. However, it does apply to any marriage
that has taken place before or after the Act had come into force. Moreover, if
the wife is not a Hindu then the husband is not bound to provide maintenance
for her under this Act under modern Hindu Law.
Who can adopt?
Under this act only Hindus may adopt subject to
their fulfilment of certain criteria. The first of these asserts that the
adopter has the legal right to (under this Act that would mean they are a
Hindu). Next, they have to have the capacity to be able to provide for the
adopted child. Thirdly the child must be capable of being adopted. Lastly,
compliance with all other specifications (as outlined below) must be met to
make the adoption valid.
Men can adopt if they have the consent of their wife
or of all of their wives. The only way of getting around obtaining the
permission of the wife or of the wives is if she or if they are unsound, if
they have died, if they have completely and finally renounced the world, and if
they have ceased to be a Hindu. Men who are unmarried can adopt as well as long
as they are not a minor. However, if a man were to adopt a daughter, the man
must be twenty one years of age or older.
Only unmarried Hindu women can legally adopt a
child. A married woman can only give her consent to adoption by her husband. A
married woman whose husband adopts a child is to be considered the
mother. If the child
is adopted and there are more than one wife living in the household, then the
senior wife is classified as the legal mother of the adopted child.
Who can be adopted?
The adopted child can be either male or female. The
adopted child must fall under the Hindu category. The adoptee also needs to be
unmarried; however, if the particular custom or usage is applicable to the
involved parties then the adoptee can be married. The child cannot be the age
of sixteen or older, unless again it is custom or the usage is applicable to
the involved parties. An adoption can only occur if there is not a child of the
same sex of the adopted child still residing in the home. In particular, if a
son were to be adopted then the adoptive father or mother must not have a legitimate
or adopted son still living in the house.
Legal implications for an adopted child
From the date of the adoption, the child is under
the legal guardianship of the new adopted parent(s) and thus should enjoy all the
benefits from those family ties. This also means that this child, therefore, is
cut off from all legal benefits (property, inheritance, etc.) from the
family who had given him or her up for adoption.
Maintenance
Maintenance of a wife
A Hindu wife is entitled to be provided for by her
husband throughout the duration of her lifetime. Regardless of whether the
marriage was formed before this Act was instated or after, the Act is still
applicable. The only way the wife can null her maintenance is if she renounces
being a Hindu and converts to a different religion, or if she commits adultery.
The wife is allowed to live separately from her
husband and still be provided for by him. This separation can be justified
through a number of different reasons, including if he has another wife living,
if he has converted to a different religion other than Hinduism, if he has
treated her cruelly, or even has a violent case of leprosy.
If the wife is widowed by her late
husband, then it is the duty of the father-in-law to provide for her. This
legal obligation only comes into effect if the widowed wife has no other means
of providing for herself. If she has land of her own, or means of an income and
can maintain herself then the father-in-law is free from obligation to her.
Additionally, if the widow remarries then her late husband's father-in-law does
is not legally bound by this Act anymore as well.
Maintenance of a child or of aged parents
Under this act, a child is guaranteed maintenance
from his or her parents until the child ceases to be a minor. This is in effect
for both legitimate and illegitimate children who are claimed by the parent or
parents. Parents or infirmed daughters, on the other hand, must be maintained
so long as they are unable to maintain for themselves.
Amount of maintenance provided
The amount of maintenance awarded, if any, is
dependent on the discretion of the courts. Particular factors included in the
decision process include the position or status of the parties, the number of
persons entitled to maintenance, the reasonable wants of the claimants, if the
claimant is living separately and if the claimant is justified in doing so, and
the value of the claimant's estate and income. If any debts are owed by the
deceased, then those are to be paid before the amount of maintenance is awarded
or even considered.
Section 8 in The Hindu Adoptions and Maintenance Act, 1956
8 Capacity of a female Hindu to take in adoption. —Any female Hindu—
(a) who is of sound mind,
(b) who is not a minor, and
(c) who 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 of competent jurisdiction to be of unsound mind, has the capacity to take a son or daughter in adoption.
Section 11 in The Hindu Adoptions and Maintenance Act, 1956
11 Other conditions for a valid adoption. —In every adoption, the following conditions must be complied with:—
(i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not have a Hindu son, son's son or son's son's son (whether by legitimate blood relationship or by adoption) living at the time of adoption;
(ii) 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 son's daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;
(iii) 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;
(iv) 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;
(v) the same child may not be adopted simultaneously by two or more persons;
(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth 1 [or in the case of an abandoned child or child whose parentage is not known, from the place or family where it has been brought up] to the family of its adoption:
Provided that the performance of datta homam shall not be essential to the validity of adoption.
(i) Provision of section 11 requiring age difference between adoptive mother and adoptive son to be at least 21 years is mandatory in nature. Word ‘must' cannot be read as ‘may'. This breach is fatal to adoption; Hanmant Laxman Salunke (D) by L.Rs. v. Shrirang Narayan Kanse, AIR 2006 Bom 123.
(ii) The defendant's father only wanted that he should be reared up by Sankar and Sasi after the mother's death and there had been no formal ceremony of adoption nor were Sankar and Sasi unfit to have children of their own, thereby negativing the adoption; Urmila Devi v. Hemanta Kumar Mohanta, AIR 1993 Ori 213.
(iii) The age of the plaintiff was 30 years and that of the adoptive mother 48 years six months, thereby contravening the provisions of section 11(iv) as the difference between the plaintiff and mother was only 19 years and not 21 years; Nemichand Shantilal Patni v. Basantabai, AIR 1994 Bom 235.
(iv) There was no evidence in hand that the plaintiff was actually given and taken in adoption by the parents or guardians of the plaintiff as required under section 11(vi). Adoption was held not to have taken place; Nemichand Shantilal Patni v. Basantabai, AIR 1994 Bom 235.
Section 18 in The Hindu Adoptions and Maintenance Act, 1956
18 Maintenance of wife. —
(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her life time.
(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance—
(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or wilfully neglecting her;
(b) 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.
(3) 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.
(i) The 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.
(ii) The thoughtless action of the husband of evicting the wife from the house where she had been living in collusion with the purchasers of the house and the police inflicted a deep wound on her amounting to cruelty, the wife was entitled to live separately and claim maintenance; Meera Nireshwalia v. Sukumar Nireshwalia, AIR 1994 Mad 168.
(iii) The claim for maintenance by a wife can also be sustained under clause (g) even on a ground covered by one or other clauses i.e. clause (a) to (f) of section 18(2) substantially but not fully. Merely because the wife fails to strictly prove the specific grounds urged by her, she cannot be denied relief; Meera Nireshwalia v. Sukumar Nireshwalia, AIR 1994 Mad 168.
Section 19(1) in The Hindu Adoptions and Maintenance Act, 1956
(1) A Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained after the death of her husband by her father-in-law: Provided and to the extent that she is unable to maintain herself out of her own earnings or other property or, where she has no property of her own, is unable to obtain maintenance—
(a) from the estate of her husband or her father or mother, or
(b) from her son or daughter, if any, or his or her estate.
Section 20 in The Hindu Adoptions and Maintenance Act, 1956
20. Maintenance of children and aged parents.—
Subject to the provisions of this section 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.
A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor.
A legitimate or illegitimate child may claim maintenance from his or her father or mother so long as the child is a minor.
The obligation of a person to maintain his or her aged or infirm parent or a daughter who is unmarried extends in so far as the parent or the unmarried daughter, as the case may be, is unable to maintain himself or herself out of his or her own earnings or other property. Explanation.—In this section “parent” includes a childless step-mother.
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