S 6 of Hindu Adoption and maintenance Act:- Requisites of a valid adoption.—No adoption shall be valid unless—
(i) the person adopting has the capacity, and also the right, to take in adoption;
(ii) the person giving in adoption has the capacity to do so;
(iii) the person adopted is capable of being taken in adoption; and
(iv) the adoption is made in compliance with the other conditions mentioned in this Chapter.
S 7 of Hindu Adoption and maintenance Act: Capacity of a male Hindu to take in adoption.—Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption:
Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife 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.
S 8 of Hindu Adoption and maintenance Act: Capacity of a female Hindu to take in adoption.—Any female Hindu who is of sound mind and is not a minor has the capacity to take a son or daughter in adoption:
Provided that, if she has a husband living, she shall not adopt a son or daughter except with the consent of her husband unless the husband 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.]
S 9 of Hindu Adoption and maintenance Act: Persons capable of giving in adoption.—(1) No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.
7[(2) Subject to the provisions of sub-section (4), the father or the mother, if alive, shall have equal right to give a son or daughter in adoption:
7. Subs. by Act 30 of 2010, S. 4(i) (w.e.f. 31-8-2010).
Provided that such right shall not be exercised by either of them save with the consent of the other unless one of them 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.]
(3) 8[* * *]
8. Omitted. by Act 30 of 2010, S. 4(ii) (w.e.f. 31-8-2010).
9[(4) Where both the father and mother are dead or have completely and finally renounced the world or have abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or where the parentage of the child is not known, the guardian of the child may give the child in adoption with the previous permission of the court to any person including the guardian himself.]
9. Subs. by Act 45 of 1962, S. 3(b) (w.e.f. 29-11-1962).
(5) Before granting permission to a guardian under sub-section (4) the court shall be satisfied that the adoption will be for the welfare of the child, due consideration being for this purpose given to the wishes of the child having regard to the age and understanding of the child and that the applicant for permission has not received or agreed to receive and that no person has made or given or agreed to make or give to the applicant any payment or reward in consideration of the adoption except such as the court may sanction.
Explanation.—For the purposes of this section—
(i) the expressions “father” and “mother” do not include an adoptive father and an adoptive mother,
S 10 of Hindu Adoption and maintenance Act: Persons who may be adopted.—No person shall be capable of being taken in adoption unless the following conditions are fulfilled, namely—
(i) he or she is a Hindu;
(ii) he or she has not already been adopted;
(iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits persons who are married being taken in adoption;
(iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption.
11. Other conditions for a valid adoption.—In every adoption, the following conditions must be complied with:
(i) if any 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 (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 [or in the case of an abandoned child or a 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 homan, shall not be essential to the validity of an adoption.
Detail discussion
Essentials of a Valid Adoption under the Hindu Adoption and Maintenance Act, 1956
The Hindu Adoption and Maintenance Act, 1956 (HAMA) lays down the legal framework for adoption by Hindus in India. To ensure a valid adoption, several key requirements need to be fulfilled, as outlined in Section 6 of the act. These essentials can be categorized into four main aspects:
1. Capacity of Adopting and Giving in Adoption:
Adopting parents:
Either married or unmarried.
Must not have a Hindu son, grandson, or great-grandson (biological or adopted) living at the time of adoption
Must be of sound mind.
Should be at least 21 years older than the child to be adopted.
Person giving in adoption:
Biological parent or legal guardian.
Must be of sound mind.
Must have the legal right to give the child in adoption.
2. Capacity of the Child to be Adopted:
Must be a Hindu.
Unmarried.
Has not completed 15 years of age.
Consent of natural parents or guardians (if applicable):
Required for children with living biological parents or guardians.
Exceptions exist for abandoned children or children whose parentage is unknown.
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