HINDU ADOPTIONS AND MAINTENANCE ACT, 1956
HINDU
ADOPTIONS AND MAINTENANCE ACT, 1956
[Act
no. 78 of Year 1956, dated 21st. December, 1956]
An
Act to amend and codify the law relating to adoptions and maintenance
among Hindus.
Be it enacted
by Parliament in the Seventh Year of the Republic of India as
follows: -
CHAPTER
I: PRELIMINARY
1.
Short title and extent
(1)
This Act may be called the Hindu Adoptions and Maintenance Act, 1956.
(2) It extends to the whole of
India except the State of Jammu and Kashmir.
2.
Application of Act
(1) This
Act applies-
(a) to any
person, who is a Hindu by religion in any of its forms or
developments, including a Virashaiva, a Lingayat or a follower of the
Brahmo, Prarthana or Arya Samaj,
(b)
to any person who is a Buddhist, Jaina or Sikh by religion, and
(c) to any other person who is not
a Muslim, Christian, Parsi or Jew by religion, unless it is proved
that any such person would not have been governed by the Hindu law or
by any custom or usage as part of the law in respect of any of the
matters dealt with herein if this Act had not been passed.
Explanation:
The following persons are Hindus, Buddhists, Jainas or Sikhs by
religion, as the case may be:
(a)
any child, legitimate or illegitimate, both of whose parents are
Hindus, Buddhists, Jainas or Sikhs by religion;
(b)
any child, legitimate or illegitimate, one of whose parents is a
Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a
member of the tribe, community, group or family to which such parent
belongs or belonged; 1[***]
2[(bb)
any child, legitimate or illegitimate, who has been abandoned both by
his father and mother or whose parentage is not known and who in
either case is brought up as a Hindu, Buddhist, Jaina or Sikh; and]
(c) any person who is convert or
reconvert to the Hindu, Buddhist, Jaina or Sikh religion.
(2)
Notwithstanding anything contained in sub-section (1), nothing
contained in this Act shall apply to the members of any Scheduled
Tribe within the meaning of clause (25) of article 366 of the
Constitution unless the Central Government, by notification in the
Official Gazette, otherwise directs.
(2A)
Notwithstanding anything contained in sub-section (1), nothing
contained in this Act shall apply to Renoncants of the Union
Territory of Pondicherry.
(3)
The expression "Hindu" in any portion of this Act shall be
construed as if it included a person who, though not a Hindu by
religion, is, nevertheless, a person to whom this Act applies by
virtue of the provisions contained in this section.
3.
Definitions
In this Act,
unless the context otherwise requires,-
(a)
the expressions "custom" and "usage" signify any
rule which, having been continuously and uniformly observed for a
long time, has obtained the force of law among Hindus in any local
area, tribe, community, group or family:
PROVIDED
that the rule is certain and not unreasonable or opposed to public
policy:
PROVIDED
FURTHER that, in the case of a rule applicable only to a family, it
has not been discontinued by the family;
(b)
"maintenance" includes-
(i)
in all cases, provision for food, clothing, residence, education and
medical attendance and treatment;
(ii)
in the case of an unmarried daughter, also the reasonable expenses of
and incidents to her marriage;
(c)
"minor" means a person who has not completed his or her age
of eighteen years.
4.
Overriding effect of Act
Save
as otherwise expressly provided in this Act,-
(a)
any text, rule or interpretation of Hindu law or any custom or usage
as part of that law in force immediately before the commencement of
this Act shall cease to have effect with respect to any matter for
which provision is made in this Act;
(b)
any other law in force immediately before the commencement of this
Act shall cease to apply to Hindus insofar as it is inconsistent with
any of the provisions contained in this Act.
CHAPTER
II: ADOPTION
5.
Adoptions to be regulated by this Chapter
(1)
No adoption shall be made after the commencement of this Act by or to
a Hindu except in accordance with the provisions contained in this
Chapter, and any adoption made in contravention of the said
provisions shall be void.
(2)
An adoption which is void shall neither create any rights in the
adoptive family in favour of any person which he or she could not
have acquired except by reason of the adoption, nor destroy the
rights of any person in the family of his or her birth.
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.
7.
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.
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.
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.
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 3[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.
3[(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 expression "father" and "mother" do not
include an adoptive father and an adoptive mother; 1[***]
2[(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.
10.
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 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 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 2[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.
12.
Effects of adoption
An
adopted child shall be deemed to be the child of his or her adoptive
father or mother for all purposes with effect from the date of the
adoption and from such date all the ties of the child in the family
of his or her birth shall be deemed to be severed and replaced by
those created by the adoption in the adoptive family:
PROVIDED
that-
(a) 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;
(b)
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;
(c) the adopted child shall not
divest any person of any estate which vested in him or her before the
adoption.
Comment:
It is clear on a reading of the main part of Section 12 and
sub-section (vi) of Section 11 that the effect of adoption under the
Act is that it brings about severance of all ties of the child given
in adoption in the family of his or her birth. The child altogether
ceases to have any ties with the family of his birth.
Correspondingly, these very ties are automatically replaced by those
created by the adoption in the adoptive family. The legal effect of
giving the child in adoption must therefore be to transfer the child
from the family of its birth to the family of its adoption. Smt.
Sitabai v. Ramchandra, AIR 1970 SUPREME COURT 343
13.
Right of adoptive parents to dispose of their properties
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.
14.
Determination of adoptive mother in certain cases
(1)
Where a Hindu who has a wife living adopts a child, she shall be
deemed to be the adoptive mother.
(2)
Where an adoption has been made with the consent of more than one
wife, the senior-most in marriage among them shall be deemed to be
the adoptive mother and the others to be step-mothers.
(3)
Where a widower or a bachelor adopts a child, any wife whom he
subsequently marries shall be deemed to be the step-mother of the
adopted child.
(4) Where a
widow or an unmarried woman adopts a child, any husband whom she
marries subsequently shall be deemed to be the step-father of the
adopted child.
15.
Valid adoption not to be cancelled
No
adoption which has been validly made can be cancelled by the adoptive
father or mother or any other person, nor can the adopted child
renounce his or her status as such and return to the family of his or
her birth.
16.
Presumption as to registered documents relating to adoption
Whenever any document registered
under any law for the time being in force is produced before any
court purporting to record an adoption made and is signed by the
person giving and the person taking the child in adoption, the court
shall presume that the adoption has been made in compliance with the
provisions of this Act unless and until it is disproved.
17.
Prohibition of certain payments
(1)
No person shall receive or agree to receive any payment or other
reward in consideration of the adoption of any person, and no person
shall make or give or agree to make or give to any other person any
payment or reward the receipt of which is prohibited by this section.
(2) If any person contravenes the
provisions of sub-section (1), he shall be punishable with
imprisonment which may extend to six months, or with fine, or with
both.
(3) No prosecution
under this section shall be instituted without the previous sanction
of the State Government or an officer authorised by the State
Government in this behalf.
CHAPTER
III: MAINTENANCE
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 lifetime.
(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 of
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 her 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.
19.
Maintenance of widowed daughter-in-law
(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.
(2)
Any obligation under sub-section (1) shall not be enforceable if the
father-in law has not the means to do so from any coparcenary
property in his possession out of which the daughter-in-law has not
obtained any share, and any such obligation shall cease on the
re-marriage of the daughter-in-law.
20.
Maintenance of children and aged parents
(1)
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.
(2) A legitimate or illegitimate
child may claim maintenance from his or her father or mother so long
as the child is a minor.
(3)
The obligation of a person to maintain his or her aged or infirm
parent or a daughter who is unmarried extends insofar 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.
21.
Dependants defined
For the
purposes of this Chapter "dependants" means the following
relatives of the deceased:
(i)
his or her father;
(ii) his
or her mother;
(iii) his
widow, so long as she does not re-marry;
(iv)
his or her son or the son of his predeceased son or the son of
predeceased son of his predeceased son, so long as he is a minor:
PROVIDED
and to the extent that he is unable to obtain maintenance, in the
case of a grandson from his father's or mother's estate, and in the
case of a great grand-son, from the estate of his father or mother or
father's father or father's mother;
(v)
his or her unmarried daughter, or the unmarried daughter of his
predeceased son or the unmarried daughter of a predeceased son of his
predeceased son, so long as she remains unmarried:
PROVIDED
and to the extent that she is unable to obtain maintenance, in the
case of a grand-daughter from her father's or mother's estate and in
the case of a great-grand-daughter from the estate of her father or
mother or father's father or father's mother;
(vi)
his widowed daughter:
PROVIDED
and to the extent that she is unable to obtain maintenance-
(a) from the estate of her
husband, or
(b) from her
son or daughter if any, or his or her estate; or
(c)
from her father-in-law or his father or the estate of either of them;
(vii) any widow of his son or of a
son of his predeceased son, so long as she does not remarry:
PROVIDED
and to the extent that she is unable to obtain maintenance from her
husband's estate, or from her son or daughter, if any, or his or her
estate; or in the case of a grandson's widow, also from her
father-in-law's estate
(viii)
his or her minor illegitimate son, so long as he remains a minor;
(ix) his or her illegitimate
daughter, so long as she remains unmarried.
22.
Maintenance of dependants
(1)
Subject to the provisions of sub-section (2) the heirs of a deceased
Hindu are bound to maintain the dependants of the deceased out of the
estate inherited by them from the deceased.
(2)
Where a dependant has not obtained, by testamentary or intestate
succession, any share in the estate of a Hindu dying after the
commencement of this Act, the dependant shall be entitled, subject to
the provisions of this Act, to maintenance from those who take the
estate.
(3) The liability
of each of the persons who takes the estate shall be in proportion to
the value of the share or part of the estate taken by him or her.
(4) Notwithstanding anything
contained in sub-section (2) or sub-section (3), no person who is
himself or herself a dependant shall be liable to contribute to the
maintenance of others, if he or she has obtained a share or part the
value of which is, or would, if the liability to contribute were
enforced, become less than what would be awarded to him or her by way
of maintenance under this Act.
23.
Amount of maintenance
(1)
It shall be in the discretion of the court to determine whether any,
and if so what, maintenance shall be awarded under the provisions of
this Act, and in doing so the court shall have due regard to the
considerations set out in sub-section (2), or sub-section (3), as the
case may be, so far as they are applicable.
(2)
In determining the amount of maintenance, if any, to be awarded to a
wife, children or aged or infirm parents under this Act, regard shall
be had to-
(a) the position
and status of the parties;
(b)
the reasonable wants of the claimant;
(c)
if the claimant is living separately, whether the claimant is
justified in doing so;
(d)
the value of the claimant's property and any income derived from such
property, or from the claimant's own earnings or from any other
source;
(e) the number of
persons entitled to maintenance under this Act.
(3)
In determining the amount of maintenance, if any, to be awarded to a
dependant under this Act, regard shall be had to-
(a)
the net value of the estate of the deceased after providing for the
payment of his debts;
(b)
the provision, if any, made under a will of the deceased in respect
of the dependant;
(c) the
degree of relationship between the two;
(d)
the reasonable wants of the dependant;
(e)
the past relations between the dependant and the deceased;
(f) the value of the property of
the dependant and any income derived from such property; or from his
or her earnings or from any other source;
(g)
the number of dependants entitled to maintenance under this Act.
24.
Claimant to maintenance should be a Hindu
No
person shall be entitled to claim maintenance under this Chapter if
he or she has ceased to be a Hindu by conversion to another religion.
25.
Amount of maintenance may be altered on change of circumstances
The amount of maintenance, whether
fixed by a decree of court or by agreement, either before or after
the commencement of this Act, may be altered subsequently if there is
a material change in the circumstances justifying such alteration.
26.
Debts to have priority
Subject
to the provisions contained in section 27 debts of every description
contracted or payable by the deceased shall have priority over the
claims of his dependants for maintenance under this Act.
27.
Maintenance when to be a charge
A
dependant's claim for maintenance under this Act shall not be a
charge on the estate of the deceased or any portion thereof, unless
one has been created by the will of the deceased, by a decree of
court, by agreement between the dependant and the owner of the estate
or portion, or otherwise.
28.
Effect of transfer of property on right to maintenance
Where
a dependant has a right to receive maintenance out of an estate, and
such estate or any part thereof is transferred, the right to receive
maintenance may be enforced against the transferee if the transferee
has notice of the right or if the transfer is gratuitous; but not
against the transferee for consideration and without notice of the
right.
CHAPTER
IV: REPEAL AND SAVING
29.
[Rep. by the Repealing and Amending Act, 1960]
30.
Saving
Nothing contained in
this Act shall affect any adoption made before the commencement of
this Act, and the validity and effect of any such adoption shall be
determined as if this Act had not been passed.