Table of Contents

Study Notes on Hindu Law – UNIT V

Law relating to Hindu Minority and Guardianship: Kinds of Guardians;

MINORITY AND GUARDIANSHIP

The Hindu Minority and Guardianship Act, 1956

2 Act to be supplemental to Act 8 of 1890

3 Application of Act

4 Definitions

5 Over-riding effect of Act

6 Natural guardians of a Hindu minor

7 Natural guardianship of adopted son

8 Powers of natural guardian

9 Testamentary guardians and their powers

10 Incapacity of minor to act as guardian of property

11 De facto guardian not to deal with minors property

12 Guardian not to be appointed for minors undivided interest in joint family property

13 Welfare

Duties & Powers of Guardians; A detailed study of Hindu Adoption and Maintenance Act, 1956;

Case Laws:

  • Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228

Maintenance: Traditional Rights and Rights under Hindu Adoption & Maintenance Act 1956.

ADOPTION AND MAINTENANCE

The Hindu Adoption and Maintenance Act, 1956

2 Application of Act
3 Definitions
4 Overriding effect of Act
5 Adoption to be regulated by this Chapter

6 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.
Kumar Sursen v. State of Bihar – Under section 6 the law does not recognize an adoption by a Hindu of any person other than a Hindu;
M. Gurudas v. Rasaranjan – To prove valid adoption, it would be necessary to bring on records that there had been an actual giving and taking ceremony;

Suma Bewa v. Kunja Bihari Nayak – Law is well settled that adoption displaces the natural line of succession and therefore, a person who seeks to displace the natural succession to the property alleging an adoption must prove the factum of adoption and its validity by placing sufficient materials on record.

Devgonda Raygonda Patil v. Shamgonda Raygonda Patil – Section 6 does not bar a lunatic person from being adopted.

7 Capacity of 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.

Explanation. – If a person has more than one wife living at the time of adoption, the consent of all the wives is necessary unless the consent of any one of them is unnecessary for any of the reasons specified in the preceding proviso.

Ram Sundar v Kali Narain – it was observed that mere weakness of mind is not sufficient, what is necessary to be proved is that infirmity of mind has been such as to disable him from understanding what he was doing.

In Ambarish Kumar v Hatu Prasad, it was held that a person who is deaf and dumb but is in a position to express himself to signs and gestures though not clearly, cannot be called a person of unsound mind.

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.

If she is not married

  • Earlier, an unmarried female as well as a widow had no power to adopt except under the authority
  • Post amendment of the act, an unmarried woman who completes the age of eighteen can adopt a child.
  • Now possible for a unmarried woman to have a legitimiate adopted son

If she be married

  • A married woman whose husband is living has no capacity to adopt even with the consent of her husband
  • A woman can take adoption if
    • marriage is dissolved
    • dead of the husband
  • A married woman can adopt –
    • husband has ceased to be a Hindu
    • completely renounced the world
    • husband has been declared by a court as an unsound mind

9 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.
  2. Subject to the provisions of 1[ sub- section (3) and sub- section (4)], the father, if alive, shall alone have the right to give in adoption, but such right shall not be exercised save with the consent of the mother unless the mother 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. The mother may give the child in adoption if the father 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.
  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.
  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;
  • (ia) ” guardian” means a person having the care of the person of a child or of both his person and property and includes-
    • (a) a guardian appointed by the will of the child’ s father or mother, and
    • (b) a guardian appointed or declared by a court; and
  • (ii) ” court” means the city civil court or a district court within the local limits of whose jurisdiction the child to be adopted ordinarily resides.
Dhanraj v Suraj Bai, it was held that adoption of a ‘step-son’ given in adoption by the step-mother who has no capacity to do so is invalid by virtue of Section 5(i) read with Section 6(ii) of the Act.
A mother can give her child by her previous husband in adoption if she remarries; Mother of an illegitimate child can give the child in adoption without the consent of her paramour to whom the child was born

10 Persons who may be adopted – conditions

  1. He or she is a Hindu
  2. He or she has not already been adopted
  3. 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
  4. 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
In Rakhi v. 1st Addl. District Judge, it was observed that a person aged about 28 years can never be adopted. Sec. 10 (iv) of the Act prescribed the age at 15 years. Such adoption is to follow the prescribed procedure for the adoption namely, actual giving and taking in adoption as prescribed in Sec. 11(vi) of the Act.
In Maya Ram v. Jainarian, it was held that the adoption of a married Jat boy who was above 15 years of age, as valid on the force of customs prevailing in that community.
In Khazan Singh v. Union of India, where the adopted child originally belonged to the higher caste, but on adoption was to one beloging to the Scheduled Tribe and Scheduled Tribe Certificate was granted to him on the basis of adoption and it was held that the certificate could not be cancelled without giving opportunity to the adoptee to prove that adoption was valid in spite of the bar of age.

11 Other conditions for a valid adoption

12 Effects of adoption

  • the 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, including the obligation to maintain relatives in the family of his or her birth
  • the adopted child shall not divest any person or any estate which vested in him or her before the adoption

13 Right to adoptive parents to dispose of their properties

14 Determination of adoptive mother in certain cases

15 Valid adoption not to be cancelled

16 Presumption as to registered documents relating to adoption

17 Prohibition of certain payments

18 Maintenance of wife

19 Maintenance of widowed daughter-in-law

20 Maintenance of children and aged parents

21 Dependants defined

22 Maintenance of dependants

23 Amount of maintenance

24 Claimant to maintenance should be a Hindu

25 Amount of maintenance may be altered on change of circumstances

26 Debts to have priority

27 Maintenance when to be a charge

28 Effect of transfer of property on right to maintenance

29 Repeals

30 Savings

Case Laws:

  • Brijendra v. State of M.P., AIR 2008 SC 1058