Different Hindu adoption laws were in effect before 1956
After 21 December 1956, adoption of and by Hindus in India is governed by the Hindu Adoptions and Maintenance Act, 1956
My uncle adopted his brother-in-law in 1951 when he was about 18-19 years old and his own son had died in a car accident. Is this legal? I am told that the adoption took place before a Panchayat of 4-5 people who signed on plain paper. The Panchayatnama was not registered.
—Krishan Chand Gupta
After 21 December 1956 (“Commencement Date”), adoption of and by Hindus in India (apart from in Jammu and Kashmir) is governed by the Hindu Adoptions and Maintenance Act, 1956 (“Act”). Section 30 of the Act inter alia states that nothing contained in the Act shall affect any adoption made before the Commencement Date and that the validity and the effect of such an adoption shall be determined as if the Act had not been passed.
The main provisions of the law that governed adoption of a Hindu male by another Hindu male, prior to 21 December 1956, are briefly stated here:
-Every male Hindu could adopt provided that he was competent to do so, i.e., he had to be of sound mind and should have attained the age of ‘discretion’. Such a person could have been a minor but over the age of 15.
-Such Hindu male could not have had a son, grandson or great-grandson, natural or adopted, living at the time of adoption. It may be noted that different High Courts have differed in their views to this requirement.
-A father and mother were the only persons who could lawfully give a boy in adoption, with the primary right being the father’s.
-The person being adopted had to be a male.
-He should have been of the same caste as his adopting father.
There does not appear to be an age restriction on the boy being adopted; i.e. a boy over the age of 18 could also be adopted.
-The adopting father could legally marry the mother of the boy being adopted.
-A valid adoption implies free consent to the adoption by the person giving in adoption, the person receiving, and if the person being adopted is a major, then of such person, too. In other words, the adoption could not have been on the basis of misrepresentation, coercion, fraud, undue influence or mistake.
-The most important ceremony was the physical act of giving and receiving, with the intent to transfer the boy from one family into another. This physical act was necessary to complete the adoption and make it valid. While no form was prescribed, what should have been done was the natural parent should have handed over the adopted boy and the adopting parent should have received him.
As the adoption took place several years ago, it may not be possible to prove this act. In such a case, as long as the person and family adopting has taken steps to recognize the adoption over a number of years, it can be inferred that conditions relating to a valid adoption were fulfilled.
Response is based on 21st edition (2010) of Mulla’s Hindu Law.
-The other two ceremonies were ‘dattahoman’ (oblations of clarified butter to fire) and certain other minor ceremonies ‘putresti jag’ (sacrifice for male issue); however, it is not certain whether the former was necessary for every adoption and the latter was not required to complete the validity of an adoption.
Therefore, in this case, if the aforesaid conditions were fulfilled, then the adoption by your uncle of the boy in question would have been valid. There would have been no need for the Panchayatnama to be registered. However, your attention is especially drawn to point (6) above, since you have mentioned your uncle adopted his brother-in-law, and you are requested to check that this condition too would have been fulfilled.
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