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ADOPTION Meaning of Adoption.Manu defines an adopted son as followsA son equal in caste and affectionately disposed whom his mother or father (or both) give with water at a time of calamity, is known as the Dattrirna (= Dattaka) son. Thus, adoption is the transplantation of a son from the family in which he is born, to another family where he is given by the natural parents by way of gift. The adopted son is then taken as being born in the new family and acquires rights, duties and status there only, and his tie with the old family comes to an end. In all texts it is agreed that adopted son is given away. Under the textual Hinds - Law, the main motive of adoption was religious. The religious motive is undeniably evident from Baudhsyana s text. I take thee for fulfilment of my religious duties. I take thee to continue the line of my ancestors. Sec- 6 Essential Of a Valid Adoption:valid adoption; Sec 6 of the Act laid down following conditions for a

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; (iv) the adoption is made in compliance with the other conditions mentioned in this chapter. In short, the essentials of a valid adoption are : (1) The person adopting has the capacity and also right to take in adoption (Sections 7 and 8). (2) The person giving in adoption has the capacity to do so (Section 9). (3) The person adopted is capable of being taken in adoption (Section 10). (4) The adoption is made in compliance with the other conditions mentioned in Who May Adopt ?Sections 7 and 8 of the Hindu Adoptions and Maintenance Act, 1956, deal with the person who may adopt a child. Section 7 deals with adoption by a male and Section 8 deals with adoption by a female. Whether male or female, the person who is adopting a child must have capacity and also the right to take a child in adoption. Capacity and right.According to section 6 of the Act one of the conditions to make the adoption valid is that the person taking in adoption must have the capacity to adopt as well as the right to adopt. So the capacity and right to take in adoption are two different things. A person may have the capacity to adopt but at the same time he may not have right to adopt. To constitute a valid adoption, therefore, both things must be present. Capacity of a Male to take in adoption.Section 7 lays down the capacity of a male Hindu to take a child in adoption and puts certain formalities, as will be evident from the section itself which runs as follows: Any male Hindu who is of sound mind and is not minor has the capacity to I take a son or 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 w] ceased to be a Hindu or has been declared by a court of competent jurisdiction lo 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. unnecessary for any of the reasons specified in the preceding proviso. This section abrogates the old Hindu law to a considerable extent and makes & consent of wife or wives an essential requisite of the valid adoption. It also provides dim child of any sex may be taken in adoption. Therefore the religious aspect of adoption under the Act, has vanished and now adoption has the same secular significance to I Hindu as it had among Jams and Sikhs. Minority and unsoundness.Two qualifications are necessary for a m Hindu to be capable to take a child in adoption : (i) the person must be of sound mind (ii) he must not be a minor. It was therefore held that every male Hindu who is ( sound mind may lawfully take a son in adoption if he has attained the age of majority Soundness of mind is therefore an essential requirement of a valid Hindu adoption and to be proved when challenged. So far as the soundness of mind is concerned this condition existed even under the old Hindu Law. The adoption made by a person who at the time of adoption is unsound mind, though not a congenital lunatic is altogether invalid. The condition that the person must not be a minor is a new one. Now after the passing of the Act a minor has no right to adopt. Under the pure Hindu Law, as we have seen, the person adoption was required to have reached the age of discretion. According to Section 3 (c) of the Hindu Adoptions and Maintenance Act minor means a person who has not completed his or hr age of 18 years. In view of this definition he or she would cease to be a minor only after attaining the age of 18 years even though he or she is placed in charge of a Court of Wards. Any adoption by a minor after the passing of this Act is void and cannot become valid by subsequent ratification. Consent of wife.For the adoption by a male it is necessary for him to take the consent of his wife or wives, if any. This provision has been, for the first time, incorporated in this Act. The consent of the wife is absolutely necessary. So if the consent of the wife has not been obtained the adoption will be invalid in spite of the fact that all the formalities required by law have been complied with. The intention of the Legislature was to give women also the right to express their opinion in this matter which is very important and which also affects them. The wife becomes the adoptive mother of the child adopted by her husband : hence it is just and equitable that she should also have some voice in adoption. There may be a case where the husband wants to adopt a particular boy but his wife is not at all in favour of taking that boy in adoption, in such a case it would be too much to compel her to accept that boy as her adopted son. Where the consent of wife or wives, as the case may be, has not been obtained according to law, the adoption will be invalid and the same cannot be made valid by the application of the doctrine of factum valet. Supreme Court of India Ghisalal Vs. Dhapubai (D) By Lrs. on 12 January, 2011 1. Whether mere presence of Dhapubai in the ceremonies performed by her husband Gopalji for adoption of Ghisalal amounted to her consent as contemplated by the proviso to Section 7 of the Hindu Adoptions and Maintenance Act, 1956 (for short, `the 1956 Act') is the main question which arises for consideration in these appeals filed against judgment dated 12.9.2000 of the

learned Single Judge of the Madhya Pradesh High Court, Indore Bench whereby he partly allowed the second appeals filed by the parties and modified the decree passed by the lower appellate Court, which had substantially reversed the decree passed by the trial Court in a suit for declaration, partition and possession. 2. Although, Gopalji, Dhapubai and Sunderbai who were impleaded as defendant Nos.1 to 3 in Suit No.54A of 1973 filed by Ghisalal died during the pendency of litigation, for the sake of convenience, we shall refer to them by their names and not by the description given in the suit and the appeals. 3. The pleaded case of Ghisalal was that in Baisakh of Samvat 2016 (1959) his father, Kishanlal gave him in adoption to Gopalji; that ceremonies like putting of tilak on his forehead and distribution of sweets were performed; that registered deed of adoption was executed by Kishanlal and Gopalji on 25.6.1964; that Gopalji had inherited certain agricultural lands of villages Jeeran, Arnya Barona, Kuchrod, a two storeyed house and one court-yard from his father Roopji; that after adoption, he became coparcener in the family of Gopalji and thereby acquired right in the suit properties; that Gopalji executed three Gift Deeds dated 22.10.1966 whereby he transferred lands of villages Jeeran, Arnya Barona and Kuchrod to his wife Dhapubai and the latter sold a portion of land in survey No.945 of village Kuchrod to Sunderbai vide Sale Deed dated 19.1.1973; that the gift deeds executed by Gopalji in favour of Dhapubai were fraudulent and were intended to deprive him of his right in the ancestral properties and that even in his capacity as karta of the family, Gopalji could not have gifted more than 1/3rd of his share. On the basis of these pleadings, Ghisalal prayed that a decree of partition be passed and he be given one half share in the suit properties. He further prayed that Gopalji may be directed to give an account of the agricultural produce and pay him his share. 4. In the written statement filed by him, Gopalji pleaded that he had not adopted Ghisalal and no ceremony was performed; that the so called adoption deed was obtained by playing fraud and the same was not binding on him; that the suit properties were not ancestral and that he was entitled to execute gift deeds in favour of his wife. In her separate written statement, Dhapubai also denied the factum of the adoption of Ghisalal by Gopalji and claimed that she had not given consent for the same. She then pleaded that if by taking advantage of the simplicity of Gopalji, the plaintiff obtained some writing or deed, the same is not binding on them. She further pleaded that the gift deeds were valid and Ghisalal has no right to challenge the alienation of property by her husband. 5. After filing of the written statement, Dhapubai sought and was granted leave to amend the written statement whereby she pleaded that Gopalji had earlier executed registered Gift Deed dated 29.11.1944 in her favour in respect of the lands comprised in Survey Nos.2097, 2763 and 3170 (old Survey Nos.2856, 3042/2 and 3528) of village Jeeran and she was in possession of the same. As a sequel to this, Ghisalal amended the plaint and pleaded that Gift Deed dated 29.11.1944 was not valid because the land of village Jeeran was not capable of being gifted and, in any case, the same was not binding on him. He further pleaded that Gift Deed dated 29.11.1944 was not acted upon inasmuch as the property had not been transferred in the name of Dhapubai.

6. During the pendency of the suit, Gopalji executed registered Will dated 27.10.1975 purporting to bequeath the suit properties to his wife Dhapubai. After some time, Gopalji died. 7. In the light of the pleadings of the parties, the trial Court framed the following issues: 1) Whether the suit properties mentioned in Para-6 of the plaint are the property of Joint Hindu Family? 2) Whether the plaintiff is the legally adopted son of defendant No.1 and 2? 3) Whether the Gift Deed dated 22.10.66 is illegal and void? 4) Whether the sale deed dated 19.1.73 has no effect on the plaintiff? 5) Whether the court fee has been properly paid? 6) Whether the statement made by the defendant in Suit No. 76 of 1964 is binding on the defendants as per the law of estopple? 7) Whether the lands mentioned in Paragraph 6 of the reply had been gifted on 29.11.1944 and what is its effect? 8) Relief and expenses. 8. After considering the pleadings and evidence produced by the parties, the trial Court held as under: (1) The suit properties were ancestral properties of Gopalji. (2) Ghisalal was validly adopted son of Gopalji and the onsent of Dhapubai can be presumed from her presence in the adoption ceremonies. (3) Gift Deeds dated 22.10.1966 executed by Gopalji in favour of Dhapubai and Sale Deed dated 19.1.1973 executed by her in favour of Sunderbai were invalid. (4) Will dated 27.10.1975 executed by Gopalji in favour of Dhapubai was invalid. (5) Gift Deed dated 29.11.1944 executed by Gopalji in favour of Dhapubai was not valid inasmuch as there was no acceptance by the donee and alienation of ancestral property by Gopalji in favour of his wife was not for a pious purpose. 11. While admitting the second appeal filed by Ghisalal, the High Court framed the following substantial questions of law: (1) What would be the respective shares of the plaintiff- appellant and defendant No.1 Dhapubai in the suit properties according to law in case the Will Ex.D.2 is held to have been proved and what would be their shares in case it were to be held otherwise? (2) Whether the execution and attestation of the Will Ex.D/2 have been proved in accordance with law?

(3) Whether there is legal evidence to prove the gift of the properties comprised in Ex.D/1 by Gopal in favour of Dhapubai? (4) Whether the lower Court has acted without jurisdiction or erroneously in giving directions with respect to the apportionment of the plaintiff's share in the suit land? 12. In the second appeal filed by Dhapubai, the High Court framed the following substantial questions of law: (1) Whether there is any legal evidence on record to prove the consent of Mother Dhapubai as required by Section 7 of the Hindu Adoption and Maintenance Act, 1956 for the valid adoption of plaintiff Ghisalal? (2) Whether the court below had jurisdiction to impose a condition that Dhapubai will not get the lands situated in village Kuchhdod? (3) Whether the finding of the Court below that suit properties are ancestral is perverse? 15. Shri Nikhil Majithia, learned counsel for Dhapubai argued that even though all the Courts concurrently held that Ghisalal was validly adopted by Gopalji, the finding recorded on this issue is liable to be set aside because his client had not given consent for the adoption. Learned counsel submitted that the plaint filed by Ghisalal was totally bereft of the material particulars regarding the date, time and place of adoption as also the crucial ceremony of give and take and the Courts below as well as the High Court committed serious error by recording a finding that the adoption was validly made and that too by presuming the consent of Dhapubai. Learned counsel emphasized that mere presence of Dhapubai at the place where the ceremonies of adoption are said to have been performed could not be made basis for assuming that she had willingly consented to the adoption of Ghisalal by Gopalji. He submitted that the consent contemplated by the proviso to Section 7 of the 1956 Act is mandatory and unless the consent of the wife is proved, the adoption cannot be treated valid. In support of this argument, Shri Majithia placed reliance on the judgments of this Court in Kashibai v. Parwatibai (1995) 6 SCC 213 and Brajendra Singh v. State of M.P. (2008) 13 SCC 161. Learned counsel also assailed the High Court's finding on the legality of the Will executed by Gopalji in favour of Dhapubai and argued that examination of one attesting witness was sufficient to prove execution of the Will. Learned counsel supported the impugned judgment insofar as it relates to Gift Deed dated 29.11.1944 and argued that even if this Court was to approve the finding recorded by the Courts below on the issue of Ghisalal's adoption, his challenge to Gift Deed dated 29.11.1944 should be treated as misconceived and negatived because the adoption cannot relate back to any date prior to 1959. 16. We have considered the respective submissions and gone through the written arguments filed by the learned counsel. For deciding the question whether the adoption of Ghisalal by Gopalji was valid, it will be useful to notice the relevant provisions of the 1956 Act. The same read as under:

6. Requisites of a valid adoption. -. 7. Capacity of a male Hindu to take in adoption. 8. Capacity of a female Hindu to take in adoption. 12. Effects of adoption. 16. Presumption as to registered documents relating to adoption. 17. Section 6 reproduced above enumerates the requisites of a valid adoption. It lays down that no adoption shall be valid unless the person adopting has the capacity as also the right to take in adoption; the person giving in adoption has the capacity to do so; the person adopted is capable of being taken in adoption, and the adoption is made in compliance with the other conditions mentioned in Chapter II. Section 7 lays down that any male Hindu who is of sound mind and is not minor has the capacity to take a son or a daughter in adoption. This is subject to the rider enshrined in the proviso which lays down that if the male Hindu has a wife living then he shall not adopt except with the consent of his wife unless she is incapacitated to give the consent by reason of her having completely and finally renounced the world or her having ceased to be a Hindu or she has been declared by a court of competent jurisdiction to be of unsound mind. The explanation appended to Section 7 lays down that if a person has more than one wife living at the time of adoption, then the consent of all the wives is sine qua non for a valid adoption unless either of them suffers from any of the disabilities specified in the proviso to Section 7. Section 8 enumerates the conditions, which must be satisfied for adoption by a female Hindu. Section 12 deals with effects of adoption. It declares that from the date of the adoption, an adopted child is deemed to be a child of his/her adoptive father or mother for all purposes and his ties in the family of his or her birth shall stand severed and replaced by those created in the adoptive family. Proviso (a) to this section contains a restriction on the marriage of adopted child with a person to whom he or she could not have married if he or she had continued in the family of his or her birth. Clause (b) of the proviso saves the vested right of the adopted child in the property subject to the obligations, if any, attached to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth. Likewise, clause (c) to the proviso lays down that the adopted child shall not divest any person of any estate vested in him or her before the date of adoption. Section 16 which embodies a rule of presumption lays down that whenever any document registered under any law for the time being in force evidencing adoption and signed by the person giving and person taking the child in adoption is produced before any court, then it shall presume that the adoption has been made after complying with the provisions of the Act unless proved otherwise. 18. In Indian society, a male spouse enjoyed the position of dominance for centuries together. This was particularly so in Hindu families. Under the old Hindu Law, a Hindu male had an absolute right to adopt a male child and his wife did not have the locus to question his right or to object to the adoption. A wife could adopt a son to her husband but she could not do so during her husband's lifetime without his express consent. After his death, she could adopt a son to him, in certain parts of India, only if he had expressly authorized her to do so. In other parts of India,

she could adopt without such authority. However, in no case a wife or a widow could adopt a son to herself. An adoption by a woman married or unmarried of a son to herself was invalid and conferred no legal rights upon the adopted person. A daughter could not be adopted by a male or a female Hindu. The physical act of giving was a prime necessity of the ceremonial requirements relating to adoption. As to datta homam, that is, oblations of clarified butter to fire, the law was not finally settled and there was divergence of judicial opinion. 20. The term `consent' used in the proviso to Section 7 and the explanation appended thereto has not been defined in the Act. Therefore, while interpreting these provisions, the Court shall have to keep in view the legal position obtaining before enactment of the 1956 Act, the object of the new legislation and apply the rule of purposive interpretation and if that is done, it would be reasonable to say that the consent of wife envisaged in the proviso to Section 7 should either be in writing or reflected by an affirmative/positive act voluntarily and willingly done by her. If the adoption by a Hindu male becomes subject matter of challenge before the Court, the party supporting the adoption has to adduce evidence to prove that the same was done with the consent of his wife. This can be done either by producing document evidencing her consent in writing or by leading evidence to show that wife had actively participated in the ceremonies of adoption with an affirmative mindset to support the action of the husband to take a son or a daughter in adoption. The presence of wife as a spectator in the assembly of people who gather at the place where the ceremonies of adoption are performed cannot be treated as her consent. In other words, the Court cannot presume the consent of wife simply because she was present at the time of adoption. The wife's silence or lack of protest on her part also cannot give rise to an inference that she had consented to the adoption. 21. At this stage, we may notice some precedents which have bearing on the interpretation of proviso to Section 7 of the 1956 Act. In Kashibai v. Parwatibai (supra), this Court was called upon to consider whether in the absence of the consent of one of the two wives, the adoption by the husband could be treated valid. The facts of the case show that plaintiff No.1 and defendant No.1 were two widows of deceased Lachiram. Plaintiff No.2 was daughter of Lachiram from his first wife Kashibai and defendant No.2 was the daughter from his second wife Parwati. Defendant No.3, Purshottam son of Meena Bai and grandson of Lachiram. The plaintiffs filed suit for separate possession by partition of a double storey house, open plot and some agricultural lands. The defendants contested the suit. One of the pleas taken by them was that Purshottam son of Meena Bai had been adopted by deceased Lachiram vide registered deed of adoption dated 29.4.1970, who had also executed deed of Will in favour of the adopted son bequeathing the suit properties to him and thereby denying any right to the plaintiffs to claim partition. The trial Court decreed the suit for separate possession by partition by observing that the defendants have failed to prove the adoption of Purshottam by Lachiram and the execution of Will in his favour. The High Court reversed the judgment of the trial Court and held that the defendants had succeeded in proving execution of the deed of adoption and the deed of Will in accordance of law and as such the plaintiffs were not entitled to any share in the suit properties. On appeal, this Court reversed the judgment of the High Court and restored the decree passed by the trial Court. On the issue of adoption of Purshottam, this Court observed: "It is no doubt true that after analysing the parties' evidence minutely the trial court took a definite view that the defendants had failed to

establish that Plaintiff 1, Defendant 1 and deceased Lachiram had taken Defendant 3, Purshottam in adoption. The trial court also recorded the finding that Plaintiff 1 was not a party to the Deed of Adoption as Plaintiff 1 in her evidence has specifically stated that she did not sign the Deed of Adoption nor she consented for such adoption of Purshottam and for that reason she did not participate in any adoption proceedings. On these findings the trial court took the view that the alleged adoption being against the consent of Kashi Bai, Plaintiff 1, it was not valid by virtue of the provisions of Section 7 of the Hindu Adoptions and Maintenance Act, 1956. Section 7 of the Act provides that 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. It provides that if he has a wife living, he shall not adopt except with the consent of his wife. In the present case as seen from the evidence discussed by the trial court it is abundantly clear that Plaintiff 1 Kashi Bai the first wife of deceased Lachiram had not only declined to participate in the alleged adoption proceedings but also declined to give consent for the said adoption and, therefore, the plea of alleged adoption advanced by the defendants was clearly hit by the provisions of Section 7 and the adoption cannot be said to be a valid adoption.(emphasis supplied) 22. In Brajendra Singh v. State of M.P. (supra), the Court considered the scope of Sections 7 and 8(c) of the 1956 Act in the backdrop of the claim made by the appellant that he was validly adopted son of Mishri Bai, who was married to Padam Singh but was forced to live with her parents. In 1970, Mishri Bai claims to have adopted the appellant. After some time, she was served with a notice under Section 10 of the M.P. Ceiling on Agricultural Holdings Act, 1960 indicating that her holding of agricultural land was more than the prescribed limit. In her reply, Mishri Bai claimed that she and her adopted son were entitled to retain 54 acres land. The competent authority did not accept her claim. Thereupon, Mishri Bai filed suit for declaration that the appellant is her adopted son. During the pendency of the suit, she executed a registered Will bequeathing all her properties in favour of the appellant. The trial Court decreed the suit. The first appellate Court dismissed the appeal preferred by the State of Madhya Pradesh. The High Court allowed the second appeal and held that in the absence of the consent of Mishri Bai's husband, adoption of the appellant cannot be treated as valid. This Court noticed that language of Sections 7 and 8 was different and observed: A married woman cannot adopt at all during the subsistence of the marriage except when 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. If the husband is not under such disqualification, the wife cannot adopt even with the consent of the husband whereas the husband can adopt with the consent of the wife. This is clear from Section 7 of the Act. Proviso thereof makes it clear that a male Hindu cannot adopt except with the consent of the 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. It is relevant to note that in the case of a male Hindu the consent of the wife is necessary unless the other contingency exists. Though Section 8 is almost identical, the consent of the husband is not provided for. The proviso to Section 7 imposes a restriction in the right of male Hindu to take in adoption. In this respect the Act radically departs from the old law where no such bar was laid down to the exercise of the right of a male Hindu to adopt oneself, unless he dispossesses the requisite capacity. As per the proviso to Section 7 the wife's consent must be obtained prior to adoption and cannot be subsequent to the act of adoption. The proviso lays down consent as a condition precedent to an adoption which is mandatory and adoption

without wife's consent would be void. Both proviso to Sections 7 and 8(c) refer to certain circumstances which have effect on the capacity to make an adoption. (emphasis supplied) 34. In view of the above discussion, we hold that the concurrent finding recorded by the trial Court and the lower appellate Court, which was approved by the learned Single Judge of the High Court that Gopalji had adopted Ghisalal with the consent of Dhapubai is perverse inasmuch as the same is based on unfounded assumptions and pure conjectures. We further hold that Dhapubai had succeeded in proving that the adoption of Ghisalal by Gopalji was not valid because her consent had not been obtained as per the mandate of the proviso to Section 7 of the 1956 Act. As a corollary, it is held that the suit filed by Ghisalal for grant of a decree that he is entitled to one half share in the properties of Gopalji was not maintainable and the findings recorded by the trial Court, the lower appellate Court and/or the High Court on the validity of Gift Deeds dated 29.11.1944 and 22.10.1966, Will dated 27.10.1975 executed by Gopalji in favour of Dhapubai and Sale Deed dated 19.1.1973 executed by her in favour of Sunderbai are liable to be set aside. 35. In the result, Civil Appeal Nos.6375-6376 of 2002 are allowed. The judgments and decrees passed by the trial Court, the lower appellate Court and the High Court are set aside and the suit filed by Ghisalal is dismissed. As a sequel to this, Civil Appeal Nos.6373-6374 of 2002 are dismissed. The parties are left to bear their own costs. Consent of wife when not necessary.The consent of the wife will not be necessary if the wife whose consent is sought has (l) completely and finally renounced the world, or (2) ceased to be a Hindu, or (3) has been declared by a court of competent jurisdiction to be of an unsound mind. In case a person is living with a woman as his wife and she is not legally wedded wife, her consent would not be necessary for him to make a valid adoption. The expression wife in the present context would mean only legally married wife. It is the consent of the legally married wife which has been made necessary for a valid adoption in the present context. A question may arise whether the consent of wife living separately under a decree of judicial separation would be required for a valid adoption ? The answer appears to be in the affirmative because the decree for judicial separation does not put marriage to an end and the wife continues to be the spouse of the husband. But in the case of a wife under a void marriage her consent is not necessary as she is strictly speaking not a lawful wife and the husband is entitled to ignore such a marriage as well as the wife of such a marriage. In the case of a voidable marriage under Section 12 of the Hindu Marriage Act, the wife will be treated as wife so long as the marriage has not been avoided, and the absence of her consent with respect of adoption would invalidate the adoption. Where a decree of nullity under Section 12 has been passed or where a decree of divorce has been passed under Section 13 of the Act, the consent of such wife would not be necessary to make a valid adoption.

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The consent of wife which is required under this section for a valid adoption being made by the husband need not be expressed but can be implied from the circumstances of any case. For instance, if it is found that in the ceremony of adoption, the wife has been associated with and she has not protested or abstained from participation, her consent may be held established unless cogent and clinching proof is forthcoming to show that the participation or conduct on the part of the wife was not voluntary but forced. But if the husband has more than one wife, this inference of consent by all the wives cannot be drawn merely from participation by one of wife alone. Whether the consent of all the wives necessary ?Explanation to Section 7 provides that if a man has more than one wife living at the time of adoption the consent of all the wives must be obtained. But if any one of them is suffering from any of three disabilities (i.e., civil death, apostasy or unsoundness) the consent of such wife who is under such disability may be dispensed with and the consent of all other wives must be taken. Capacity of Female to take in adoption.Under the old Hindu law, the power of female Hindu to adopt a son was very much restricted. She could not adopt to herself and could not adopt without the assent of her husband. She had no right herself but that she was deemed to act merely as an agent, or representative of her husband or that she was supposed as an instrument through whom he was supposed to act. A Hindu could direct his wife to adopt with the consent of a specified person or could direct her not to adopt except with the consent of a specified person. Where the adoption by the widow with the consent of a specified person was made a condition precedent, an adoption without such consent of the specified person was invalid. A widows power to adopt continued till her entire lifetime where (i) her husband had died without leaving any son, grandson or a great-grandson ; (ii) in case her husband had died leaving a son, and the son had also died leaving his mother as only heir to him. Under this Act, a widow gets a right to adopt a child even in the absence of any authority from her deceased husband. An unmarried woman has also an independent right to adopt a child. Under the old Hindu law, no such right was given to an unmarried woman. Thus the Act authorizes a maiden, a divorced woman or a widow to take a child in adoption. The original Section 8 of the Act laid down the conditions in which a Hindu female can adopt. It runs as follows: Any female Hindu (a) who is of sound mind, (b) who is not a minor, and (c) who is not married, or if married,

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(i) whose marriage has been dissolved, or (ii) whose husband is dead, or (iii) has completely and finally renounced the world, or (iv) has ceased to be a Hindu, or (v) 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. It may be noted that in one respect womans right of adoption is a limited one. In the case of a man, the right is subject to the vetoing power of the wife or wives as the consent of wife or wives is necessary, but in the case of woman that right can be exercised absolutely during the period of her maidenhood, divorce-hood, widowhood and conditionally during the continuance of marriage if her husband has 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. Thus the wife assumes independent power of adopting a child where the husband has (a) completely and finally renounced the world, which means that he has become Sanyasi, or (b) has become a convert by embracing other religion like Christianity and Islam, or (c) has been declared to be of unsound mind by a court of competent jurisdiction. It may be noted that such a declaration must actually be obtained ; merely on the basis of unsoundness of mind of the husband, the wife does not acquire the competence to adopt a child independently. Minority and unsoundness.A woman who is of sound mind and is not minor can take child in adoption. These two conditions are also present in case of adoption by male. If she is a minor (below the age of 18 years), or of unsound mind she is incapable of taking a child in adoption. According to Section 8 of the Hindu Adoption and Maintenance Act as substituted by the Personal Laws (Amendment) Act, 2010, 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 cannot 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. Maiden and divorced.An unmarried woman and a woman who has been divorced, i.e. whose marriage has been dissolved under Section 13 of the Hindu Marriage Act, can take a child in adoption.28 A woman whose marriage has been dissolved under Section 13 of the Hindu Marriage Act, i, for all intents and purposes of this Act, a spinster. Such a woman, therefore, has all the rights of an unmarried woman for the purposes of making an adoption. Previous to this Act a spinster had no right to take a son in adoption.

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Adoption by the widow.Section 8 recognizes the right of a Hindu widow to adopt a son or daughter to herself. The effect of adoption by a widow of a son or daughter will be to clothe the adopted son or daughter with all the rights of a natural born son or daughter in the adoptive family and to create all the ties of the child in the family (Section 12). The result is that for all purposes (subject to rules laid down in Section 12) the adoptee in effect becomes the son or daughter not only of the widow but of her deceased husband as well. When there are two cowidows, one widow alone can adopt a son or daughter without the consent of the other cowidow, for or the estate of the late husband.3 It may be noted here that the right of a female Hindu to adopt a child is larger than that of the power of a male Hindu. A male Hindu can adopt only for once whereas a female Hindu can validly adopt several times. The present Act, besides increasing the powers of adoption of a female Hindu contemplates such conditions in which female Hindu becomes eligible to make adoptions of several sons. Restrictive Conditions of Adoptions :- Section 11, Hindu Adoptions and Maintenance Act.Just because a person has capacity to adopt, it is not necessary that he has also the right to make an adoption; certain restrictive conditions exist. These conditions are (a) Adoption of son.Adopter must not have a Hindu son, sons son or sons sons son. If he has any one of these, he cannot make an adoption. Son or sons son or sons sons son may be by legitimate birth or by adoption. If the son, sons son or sons sons son has ceased to be a Hindu, an adoption of a son will be valid. (b) Adoption of daughter.If a Hindu wants to adopt a daughter, it is necessary that he must not have a Hindu daughter, or a sons daughter. Existence of an adopted daughter or sons adopted daughter will also bar the adoption of a daughter. But if daughter or sons daughter has ceased to be a Hindu, adoption of a daughter can be validly made. (c) Two persons cannot adopt the same child.Two persons cams adopt the same child. Two persons do not mean husband and wife, as such a case, both are adoptive parents of the child. Here, by two persa we mean other than husband and wife, such as two sisters, two brothers two friends. This also means that the child cannot continue to be a son m daughter, as the case may be, in his natural family as well as in the adoptive family. A child can have only one mother or one father whether natural or adoptive. (d) Age difference between the parent and child.If a Hindu wants to adopt a child of the opposite sex, he or she must be older to the child by least 21 years. Violation of this requirement renders the adoption void: . This is meant to prevent people from abusing the adopted child. WHO MAY GIVE IN ADOPTION :- S. 9, Hindu Adoptions & Maintenance Act.Under the old Hindu , law, only father or mother could give the child in adoption. According to Yajnavalkya, A dattaka son is one whom his mother or father gives. Before. 1956, the fathers power to give his son in adoption was absolute and he. could give the child in adoption even if his wife (childs mother) dissented from it. After the father, the mother could give the child in adoption. No one else could give the child in adoption, not even the guardian. Under the Hindu Adoptions and Maintenance Act, 1956, father, mother and the guardian have the power to give the child in adoption. The father.The father cannot now give the child in adoption without the consent of the mother of the child. The consent of the mother of the child may be dispensed with in any one of the

13

following three cases : (a) If she has finally and completely renounced the world, (b) if she has ceased to be a Hindu, or (c) if she has been judicially declared to be of unsound mind. In no other case, even if the marriage has been dissolved, consent of the mother can be dispensed with. In the absence of mothers consent, adoption is void. The expression father here does not include an adoptive father, putative father or stepfather. The putative father of an illegitimate son is not included even if subsequent to the birth of the child, he had married the mother of the child, because Hindu law does not recognize legitimating. In the Bombay school, a married person may be taken in adoption. The question that arises is : Can a father exercise the power of giving in adoption his son born to him before adoption ? A full Bench of the Bombay High Court held that he can do so, as he continues to be the father of the child. On the other hand, a full Bench of the Nagpur High Court took the view that he cannot do so, as the dattaka adoption implies a complete severance of the adoptee from his natural family and therefore his right to give his son in adoption is lost after he himself goes in adoption in another family. The Hindu Adoptions and Maintenance Act is silent on the relationship of an adopted person with his children born to him prior to adoption. Therefore, there is a possibility of the same conflict continuing. It is submitted that since adoption under the Act also means complete severance of ties with the natural family, the Nagpur view is sound. The mother.The mother of an illegitimate child has power to give the child in adoption and no question arises of putative fathers consent. But the mother of a legitimate child has during the life-time of the father, no power to give the child in adoption even with the consent of the father. Under the Act the mother of a legitimate child can give the child in adoption during the life-time of the father only in the following cases : (a) if the father has ceased to be a Hindu, (b) if he has finally and completely renounced the world, or (c) if he has been judicially declared to be of unsound mind. In these cases dissent of the father is of no consequence. But a remarried woman has no right to give away in adoption her son born to her from her deceased husband, since S. 3, Hindu Widow Remarriage Act, 1956 divest her of her right of guardianship over children born to her from her deceased husband.4 The mother has power to give her legitimate child in adoption after the death of the father. Even if a father, before his death expressed himself categorically that his child should not be given in adoption, the mother can, after his death, validly give the child in adoption. The expression mother does not include adoptive mother or stepmother and therefore a stepmother or adoptive mother has no capacity to give the child in adoption. But it seems that a mother on conversion to another religion will not lose her right to give the child in adoption,

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since S. 9(4) does not empower a guardian to give the child in adoption in case the parent has ceased to be a Hindu. Mother also does not lose her right of giving the child in adoption- on divorce. The Guardian.The term guardian includes both de jure and de facto guardians. Thus, a manager, secretary or any person in charge of an orphanage or a person who has brought up the child, or under whose care the child is, can give the child in adoption. A guardian can exercise the power only in the following cases : (a) If both the parents are dead, (b) if parents have finally and completely renounced the world, (c) parents have been judicially declared to be of unsound mind, (d) if parents have abandoned the child, or (e) if the parentage of the child is not known, just as in the case of a foundling or a refugee-child. Prior permission of court is necessary.When the guardian exercises power of giving the child in adoption, prior permission of the court m necessary. No court will accord permission to a proposed adoption unless it comes to the finding that the adoption will be for the welfare of the child. If the child is capable of exprssing. his wishes, his wishes will be taken into account, though court. may pass an adoption order contrary to the wishes i the child as the welfare of the child is of paramount consideration. In- considering what is for the welfare of the child, the court will consider the. physical and moral well-being of the child and the character and qualifications of the proposed adopter. The financial position and social status of the proposed adopter may also be taken into consideration. In short, the court will weigh the pros and cons of the two places : the place where the child is and the place where the child will be taken to. In the situation in which the child is proposed to be taken is less advantageous to the child, the court will ordinarily refuse to pass an adoption order. The second matter that the court has to consider before passing an adoption order is to see whether any person has not received or agreed to receive, and given or agreed to give to the applicant any payment or reward in consideration of the adoption. If any thing in cash or kind, has been given or taken or agreed to be given or taken, the court may refuse to accord permission to the proposed adoption. It is submitted that if an adoption is made in contravention of this condition (it may not be brought to the notice of the court), the adoption will stand valid as this cannot be taken as an essential condition of adoption within the meaning of Section 6(iv). The court has power to allow some payment to be made to the guardian. For instance, cost of the performance of ceremonies of adoption will be a valid charge. The court may also allow the actual cost of the upkeep of the child that guardian has incurred from his own pocket. The court, it seems, has also power to attach conditions to the adoption order. The court means the city civil court or a district court within the local limits on whose jurisdiction the child to be adopted ordinarily resides.

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Permission of the court in other cases.It has been seen earlier that if the father or mother gives the child in adoption, no prior permission of the court or any adoption order is necessary. This is the continuation of the old notions where adoption Was considered to be essentially a private act. It is self evident that no person can look after the welfare of the children in a better way than the parents. But divorce cases show that it is not always so. The very fact that a parent wants to give away the child in adoption is indicative of a different attitude. May be, in some cases, a parent wants to give away his child in adoption, because he feels that the child will have better upbringing. But it may be otherwise too. For instance, a young widow, or a young mother of an illegitimate child, feels that in her settlement in life the child is a hindrance, and, therefore, she may give away the child to the first person who is willing to have it, without considering the suitability or otherwise of that person or the welfare of the child. Who may be adopted .Section 10 of the Act provides the qualifications necessary to make the subject (child) of adoption fit for being taken in adoption. The Act has taken a practical view of adoption and consequently the elaborate rules regarding the persons to be adopted have been dropped as will be evident from Section 10 of the Act which reads as follows WHO MAY BE TAKEN IN ADOPTION :- Section 10, Hindu Adoptions and Maintenance Act Under the modern law, requirements are as under: 1. Two persons cannot adopt the same ehild.T his requirement was mandatory under the old law and this is so under the Act. (This has been discussed earlier). 2. Child must be Hindu.It is necessary that the child to be adopted must be a Hindu. Therefore, adoption of a Muslim child by a Hindu is not reorganized under this Act.2 Whether he is related to the adopter by blood or marriage or is a total stranger is immaterial. It is also immaterial as to which caste he belongs. 3. Nearest sapinda and identity of caste.According to the Dattaka Chandrika and the Dhattaka Mimansa, only the nearest sapinda could be taken in adoption. But this was considered merely a recommendatory rule and adoption of remoter relation was valid under the old law. So it is under the modern law. Under the old law, the adopted son must be of the same caste as of his adoptive father. A member of one religious sect could also not adopt a son from another sect. All these prohibitions are no longer valid. Under the Act, the only requirement is that the child must be a Hindu. 4. Orphan, foundling and abandoned child.Under the old law, an orphan, foundling or abandoned child could not be adopted. This state of . law was obviously unsatisfactory in the modern context. The fact of the matter is that it is the orphan whose need of adoption is the greatest. The Hindu Adoptions and Maintenatice Act, 1956 makes a provision for the adoption of orphans. The Act goes much beyond this. If the parents have renounced the world or have been judicially declared to be of unsound mind, the child can be given in adoption by the guardian. Adoption of an 4bandoned child can be made. A foundling can also be adopted. A foundling a child who has been found by someone and whose parents are not known. the parents are known, such a child is known

16

as an abandoned child. Thus, in the modem Hindu law, the institution of adoption can be utilized to solve the social problem of orphans, abandoned and refugee children. 5. The child whose mother could not have been married by adopter.Under the old Hindu law, it was an established rule among the first three classes that no one could be adopted whose mother in her maiden state the adopter could not have legally married. Thus, one could not adopt his own daughters, sisters, mothers sisters or fathers sisters son. Exception by custom was recognized. Under the modern Hindu law, no such restriction exists, and howsoever related or unrelated the child may be, he can be taken in adoption. 6. The age of the child.Before 1956, it was a settled law that in all schools of Hindu law, except Bombay, the adoption of a son among the twice born classes was valid if made before the performance of upanayana ceremony and, among the Sudras if made before marriage. In Bombay, adoption of a child of any age was valid. Under Punjab customary law also, there was no restriction as to age. The Hindu Adoptions and Maintenance Act now lays down that the child must not have completed the age of fifteen years. Thus, a child can be adopted upto the age of 14 years and 364 days. A custom to the contrary is recognized. This means that in Bombay and Punjab and elsewhere, where such a custom prevails, adoption of a child of the age of 15 or more will be valid. But custom must be specifically pleaded and proved. Therefore, adoption of a daughter prior to the Act was held invalid, especially also when no such custom was also alleged. 7. Married child.Before 1956, the adoption of a married child among all classes was invalid throughout India except in Bombay and among Jats. In Bombay, adoption of a married person, or a married person with children was valid. Section 1O(iii) prohibits adoption of married child, but recognises a custom to the contrary. Adoption of married person of any age is permitted among the Jats in Punjab. Where adoption of a married person is valid, any child born to him after adoption will be the child of the adoptive family. 8. Lunatic child.A lunatic child may be validly adopted. 9. Daughter.Under the old Hindu law, a female child could not be adopted as adoption of daughter did not confer any spiritual benefit on the adopter. Prior to 1956, adoption of daughter was recognised by custom only. However, custom has to be averred and proved for overage adoption otherwise such an adoption shall be invalid. For instance, in matrilineal families in Kerala or among the devadasis, adoption of daughter was recognised by custom. Under the modern Hindu law, this bar has been lifted and a Hindu is free to adopt a daughter, though he cannot adopt more than one daughter. 10. Illegitimate child.Under the old Hindu law, adoption of an illegitimate child was not permitted as such an adoption did not confer any spiritual benefit on his adoptive father. Under the modern Hindu law, adoption of an illegitimate child is valid. 11. Two Sons and two daughters.Under the Act, no person can adopt more than one son or more than one daughter. A person may adopt one son and one daughter.

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CEREMONIES OF ADOPTION :- S. 1l(vi), Hindu Adoptions and Maintenance Act. The present Act requires only the ceremony of actual giving and taking of child in adoption, as will be clear from Section 11 (iv) of the Act, which lays down, The child to be adopted must be actually given and taken in adoption by the parents or guardians 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 Homam shall not be essential to the validity of an adoption. Under the present Act the giving and taking are the operative part of the ceremony, Law does not prescribe any particular form. For a valid adoption all that the law requires is that the natural parents only shall be asked by adoptive parents to give their child in adoption and that the child shall be handed over and taken over with intent to transfer the child from the family of his birth to the family of its adoption. The formality of actual giving and taking of the child in adoption is so essential that if it could not be proved, the adoption must be invalid. The right to give a child in adoption cannot be delegated to any person but the natural parents or guardian may authorize another person to perform the physical act of giving a child in adoption to a named person who can delegate someone to accept the child in adoption on his or her behalf. Where a child was given in adoption willingly by natural parents and was taken in adoption by adoptive mother through her attorney, the Punjab & Haryana High Court held that it was a valid adoption. Ceremony of giving and taking is essential. In Lakshman Singh Kothari v. Sri,nati Rup Kuwar, AIR 1961 SC 1378 the Supreme Court held that under the Hindu Law, whether among the regenerate caste or among Shudras, there cannot be a valid adoption unless the adoptive child is transferred from one family to another and that can be done only by the ceremony of giving and taking. The object of the corporal giving and receiving in adoption is to secure due publicity. To achieve this object it is essential to have a formal ceremony. No particular form is prescribed for the ceremony, but the law requires that the natural parent shall hand over the adoptive boy and the adoptive parent shall receive him. The nature of ceremony may vary depending upon the circumstance of each case. But a ceremony has got to be a part of adoption of giving and taking. Delegation of power to give and take may be permitted when it becomes impossible for a natural father to handover the adoptive child physically, to an adoptive father or mother. Devi Prasad v. Tribeni Debi, AIR 1970 sc 1286. :- Under Hindu Law, the giving and receiving of a child are absolutely necessary to the validity of an adoption ; but Hindu Law does not require it to be of any particular form so far as giving and acceptance are concerned. For a valid adoption all that the law requires is that the natural father shall be asked by the adoptive parent to give his child in adoption and that the child shall be handed over and taken for this purpose. According to Section 11 (iv), the following requisites are necessary to constitute a valid adoption in the sense of effective transfer of the child from one family to another: (1) There must be actual giving of the child in adoption by its natural parents, or in their absence by the guardian. (2) There must be actual taking of the child by the adopter. (3) There must be the intention to transfer the child from the family of its birth to the family of

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its adoption. (4) If the giving and taking is not by the parent or the guardian concerned, it must be under his authority given to somebody else who actually gives or takes the child in adoption. Where giving and taking of boy in adoption is doubted, and the recital about adoption is contained in a deed, such a deed cannot be presumed to be acknowledgement of adoption under Section 16 of the Act. In such a case adoption will fail. Datta Homam.Datta Homam is the sacrifice of the burning of clarified butter, which is offered as a sacrifice to fire by way of religious propitiation or oblation. We also find that in the deviation of an adopted son as given in the Institutes of Manu, hardly any stress is laid on the performance of Datta Homam. Datta Homam was not essential in the case of an adoption in the twice born classes when the adopted son belongs to the same gotra as the adoptive father. The Judicial Committee did not express any definite opinion in the matter. Dana Homam could be performed at any time after the physical act of giving and taking. The High Court of Manipur has taken the view that Dana Homam is essential ceremony under Hindu Law of adoption. Evidence of annapresana, ear-boring and upanyana etc. cannot validate adoption, in absence of Datta Homam. Datta Homam is, under the present Act, not essential for an adoption made by any class of Hindus, Jams, Buddhists and Sikhs. There is a presumption that the ceremony of giving and taking must have taken place. It is for the plaintiff to prove that ceremony of giving and taking has not taken place. But evidences against the fact of actual giving and taking ceremony must be proved beyond doubt. EFFECT OF ADOPTION :Section 12Hindu Adoptions and Maintenance Act.The section runs thus : An adopted child shall be deemed to be the child of his or adoptive father or mother for all purposes with effect from the date of IL adoption and from such date all the ties of the child in the family of his her birth shall be deemed to be severed and replaced by those created 1 the adoption in the adoptive family. In the Natural Family.Under Hindu law, both old and new, adoption of a child means that the child is totally uprooted from the natur. family and transplanted in the new family. Relationship with the members of the natural family.For secular, religious and civil purposes, the adopted child ceases to be the child of the natural family. His father and mother cease to be his parents and ali relations on the fathers side and mothers side cease to be his relations. After adoption he is not entitled to any share in the property of his natural parents. Only tie that he retains with his natural family is that he cannot marry any person in his natural family whom he could not have married before his adoption. The natural parents right of guardianship ceases with effect from the date of adoption, whatever be the age of the child. Even if the child is below 5 years, its natural mother cannot claim its custody (which she would be entitled to otherwise under Proviso to S. 6(a), Hindu Minority and Guardianship Act, 1956). When adoption of a married person is permitted, that person cannot

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give in adoption his child born to him prior to adoption, though a contrary opinion was expressed in a case under the old law.

Divesting of property.Priviso (b) to Section 12 of the Act provides that 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. Thus, any property that the child inherited from any relation before adoption will continue to be his property even after adoption. For instance, two brothers X and Y inherited property from their mother. Subsequently, the father gave away X in adoption. X will continue to be the owner of the property inherited by him from his mother before adoption. Or, take another example, the maternal grandfather of X died, leaving behind a widowed daughter-in-law P who has a right of maintenance against the grandfather. X inherited the property. the time of adoption. The estrangement between the spouses was due fr second wife taken by the husband. Through the second wife the husbaa three children. The first wife though claimed maintenance for herself claimed maintenance for the adopted child. Under the adoption was held not to be proved. Where the child all along lived with natural parents, name of natu parents was in the school, it was held that the adoption deed fraudulent. Subsequently, X is given away in adoption. X will retain the property inherited by him from his maternal grandfather, though he will be required to provide maintenance to P, so long as she is entitled to it. In the Adoptive Family.The adopted child is deemed to be the child of the adopter for all purposes. His position for all intents and purposes is that of natural born son : he has the same rights, privileges and the same obligations in the adoptive family. Relationship with the members of the adoptive family.The adoption in Hindu law means complete transplantation of the child in the adoptive family. This means that he is not merely the child of the adoptive parents but he is also related to all relations on the mothers side as well as the fathers side as if he is the natural born child of the family. Thus, fathers and mothers parents are his grand-parents. His adoptive parents daughter is his sister and so on. Since all ties come into existence in adoptive family, the adopted child cannot marry any person (whether by natural birth or adoption in the adoptive family), whom he could not have married had he or she been a natural child of the family. Guardianship, inheritance and maintenance .The adoptive parents an the natural guardians of their adopted minor child, first the father, then mother. If the adopted child is less than five years, then the adoptive mother will have preferential claim to the custody of the child. The position of an adopted child in respect of inheritance an maintenance is the same as that of the natural born child. If there is an - adopted child and a natural child, both will inherit equally. The adopted child has the right of collateral succession both on his adoptive mothers side and adoptive fathers side. In short, he will inherit in the adoptive family a if he is born in the adoptive family. Conversely, all persons are entitled to succeed to him, if they would have

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succeeded to him had he been a natural child. He can claim maintenance against his adoptive parents or against any person, against whom as a natural child could have claimed maintenance. Conversely, he is liable to maintain all those persons whom a natural child has an obligation to maintain. The adopted childs right of maintenance ceases on his attaining majority. An adopted son can also exercise the right of preemption. Under the Punjab Pre-emption Act father and son include adopted son and adoptive father. Adoptive parents right of disposing the property.Section 13 of the Act lays down: Subject to any agreement to the contrary, an adoption does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivos or by will. Chiranjilal Srilal Goenka v. Jasjit Singh, AIR 2001 SC 266. :- an adoptive parent is in no way restrained in the disposal of his/her properties by reason of adoption. Adoptive parents right of disposing of his property is subject to any agreement to the contrary that might have been entered into between the adoptive parent and the natural parent on behalf of the child. The adopted child cannot demand any property, or its enjoyment during the life-time of his father even if there is an agreement that the adoptive father will not deprive him from inheritance, as question of inheritance will arise only on the death of the father; till then father has full right to hold and enjoy the properties. Under the Act, agreements restricting the power of alienation of the adoptive parent are valid. Divesting of property .Section 12(c) specifically lays down that the adopted child shall not divest any person of any estate which vested in him or her before the adoption. The old Hindu law of divesting of property on adoption was very complicated and a source of constant litigation. Under the modern Hindu law, this source of litigation has been done away with by laying down that the adopted child cannot divest any person of the properties vested in him or her before adoption. For instance, A died leaving his widow B and two daughters, X and Y. On As death B, X and Y inherited properties of A, each taking share. This one-third share vests in each of them immediately on the death of A. In Sawan Ram v. Kalawati,AIR 1967 SC 1961 A, a Hindu, died in 1948 leaving behind his widow W. W took her husbands properties as a limited owner. In 1954, W made a gift of some lands to her grand-niece, B. X, a collateral of A and presumptive reversioner, sued for a declaration that the gift to B was not binding on him. The trial court gave the declaration prayed for. B appealed against it. Pending Bs appeal in 1959, W adopted Bs son P. Later in the same year W died. X sued for possession of lands. Since these lands were not in possession of W in 1956 (S. 14, Hindu Succession Act, 1956, converts only that widows estate into her absolute property over which she had possession when the Act came into force), she did not become full owner of these and reversioners right to challenge alienations continued (see Chapter XIV), P could succeed to these properties only as heir to Ws deceased husband. And the Supreme Court held that a son adopted by a widow is also an adopted son of her deceased husband (for reasoning of the court, see subsequent pages). Since no property vests in a reversionary, it cannot be said that the Supreme Courts decision divested the property vested in X. But it did resurrect the doctrine of relating back and thus enabled the adopted son of a widow to inherit the property of her deceased husband.

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Doctrine of Relation Back.According to this doctrine a son adopted by the widow under the authority of her husband was deemed to have been adopted on the day the husband died. He was put in the position of posthumous son and all his relations in the adoptive family related back to the date of the death of his adoptive father by a legal fiction. The theory on which this doctrine is based is that there should be no hiatus in the continuity of the line of adoptive father. The doctrine, however, has application only when the question relates to succession of the property of the adoptive father. Exception to the Rule.This Rule had two exceptions: (I) That any lawful alienation effected by a female heir since the death of the adoptive father and before the date of adoption was binding on the adopted son. (2) That if the property by inheritance went to a collateral, the adoption could not divest the property which has vested in the heir of the collateral. In Sripad Conjoin v. Datta Rani Kashi Nath,AIR 1974 SC 878 Supreme Court has explained the meaning of the doctrine of relation back in the following words, when a widow adopts a son to her husband, doctrine makes sonship retrospective from the moment of the death of the late husband. The adopted son is deemed to have born on the date of the death of the adoptive father. The propositions that emerge are that a widows adoption cannot be stultified by an anterior partition of the joint family and the adopted son can claim a share as if he were begotten and was alive when the adoptive father breathed last. . The Supreme Court further approved the principles of law relating to consequences of an adoption under the old law in Krishnamurthi v. Dhruvaraj AIR 1962 SC 59 The law was summarized as follows (i) An adopted son is held entitled to take, in defence of the rights acquired prior to his adoption, on the ground that in the eye of the law his adoption relates back by a legal fiction to the death of his adoptive father, he being put in position of a posthumous child. (ii) As a preferential heir an adopted son divests : (a) his mother of the estate of his adoptive father; (b) his adoptive mother of the estate she gets as an heir of her son who died after her husband. (iii) A coparcenary continues to subsist so long as there is in existence a widow of a coparcener capable of bringing a son into existence by adoption ; the rights of the adopted son are the same as if he had been in existence at the time when his adoptive mother died and that his title as coparcener prevails as against the title of any person claiming as heir to the last coparcener. (iv) The principle of relation back applies only when the claim made by the adopted son relates to the estate of his adoptive father. It is the interest of the adoptive father which the adopted son is declared entitled to take as on the date of his death. This principle of relation back cannot be applied when the claim made by the adopted son related not to estate of his adoptive father but to that of a collateral. With reference to the claim of a collateral, the governing principle is that inheritance can never be held in abeyance and that once it devolves on a person who is the

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nearest heir under the law, it is not liable to be divested. When succession to the properties of a person other than an adoptive father is involved, the principle applicable is not the rule of relation back but the rule that inheritance once vested could not be divested. (v) The estate continues to be the estate of the adoptive father in whatsoevers hands it may be, that is, whether in the hands of one who is the absolute owner or one who is a limited owner. Anyone who inherits the estate of the adoptive father is his heir irrespective of the inheritance having passed through a number of persons, each being the heir of the previous owner.