Hindu Adoptions And Maintenance Act.docx

Acknowledgement

I express my sincere thanks to my faculty MR.BHANU PRATAP SINGH for supporting me and guiding me throughout the assignment. I would also like to thank my parents for supporting me in completion of the assignment.

FAMILY LAW ASSIGNMENT -

HINDU ADOPTIONS AND MAINTAINCE ACT, 1956

Submitted to: Mr. BHANU PRATAP SINGH

Submitted by:

Vipin jaiswal B.A., LL.B – III (B) En No.-A8111114078

HINDU ADOPTIONS AND MAINTENANCE ACT (1956)

The Hindu Adoptions and Maintenance Act was enacted in India in 1956 as part of the Hindu Code Bills. The other legislations enacted during this time include the Hindu Marriage Act (1955), the Hindu Succession Act (1956), and the Hindu Minority and Guardianship Act (1956). All of these acts were put forth under the leadership of Jawaharlal Nehru, and were meant to codify and standardize the current Hindu legal tradition. The Adoptions and Maintenance Act of 1956 dealt specifically with the legal process of adopting children by a Hindu adult, as well as the legal obligations of a Hindu to provide "maintenance" to various family members including, but not limited to, their wife or wives, parents, and in-laws. The Hindu Adoptions and Maintenance Act was enacted in India in 1956 as part of the Hindu Code Bills. The other legislations enacted during this time include the Hindu Marriage Act (1955), the Hindu Succession Act (1956), and the Hindu Minority and Guardianship Act (1956). All of these acts were put forth under the leadership of Jawaharlal Nehru, and were meant to codify and standardize the current Hindu legal tradition. The Adoptions and Maintenance Act of 1956 dealt specifically with the legal process of adopting children by a Hindu adult, as well as the legal obligations of a Hindu to provide "maintenance" to various family members including, but not limited to, their wife or wives, parents, and in-laws

Hindu Sonship To have a son is considered a 'must' for every Hindu and begetting a son is one of the three debts that a Hindu was required to discharge in this world. In Hindu religion, it is believed that a son delivers his father from the hell (called 'put') hence he is called a 'putra'. [1] Hindus have always desired to have a natural born son (an 'aurasa') for the spiritual benefit and the continuation of family. Yet, secondary sons have been recognized right from the Vedic age to this date. Some of the illegitimate sons were also fitted into the system of sonship and those who were left out were never denied maintenance. It was believed that the one who was responsible, either directly or indirectly, for the birth of a child had to provide for maintenance of it. According to Hindu sages, the number of sons is twelve or thirteen. According to Manu, sons are classified into two categories. The sons in category 1 are kinsmen as well as heirs while the sons in category 2 are only kinsmen. During the Raj, most of sons in above categories became obsolete and there remained only one natural born son and the adopted son.

APPLICATION This Act applies to Hindus and all those considered under the umbrella term of Hindus, which includes: 

a Hindu by religion in any of its forms or development;



a Buddhist, Jain or Sikh;



a child legitimate or illegitimate whose parents are Hindus, Buddhists, Jains or Sikhs;



a child legitimate or illegitimate one of whose parents are Hindus, Buddhists, Jains or Sikhs and has been so brought up;



an abandoned child, legitimate or illegitimate of unknown parentage brought up as a Hindu, Buddhist, etc.; and



a convert to the Hindu, Buddhist, Jain or Sikh religion.

Persons who are Muslims, Christians, Parsis or Jews are excluded from this definition. The Act does not also apply to adoptions that took place prior to the date of enactment. However, it does apply to any marriage that has taken place before or after the Act had come into force. Moreover, if the wife is not a Hindu then the husband is not bound to provide maintenance for her under this Act under modern Hindu Law.

ADOPTION WHO CAN ADOPT? Under this Act only Hindus may adopt subject to their fulfilment of certain criteria. The first of these asserts that the adopter has the legal right to (under this Act that would mean they are a Hindu). Next, they have to have the capacity to be able to provide for the adopted child. Thirdly the child must be capable of being adopted. Lastly, compliance with all other specifications (as outlined below) must be met to make the adoption valid. Men can adopt if they have the consent(s) of their wife or of all of their wives. The only way of getting around obtaining the permission of the wife or of the wives is if she or if they are unsound, if they have died, if they have completely and finally renounced the world, and if they have ceased to be a Hindu. Men who are unmarried can adopt as well as long as they are not a minor. However, if a man were to adopt a daughter, the man must be twenty one years of age or older. Women can adopt if they have the consent of their husband. Again, the only way of getting around obtaining the permission of the husband is if he is unsound, has died, has completely and finally renounced the world, and has ceased to be a Hindu. Women who are unmarried can adopt as well as long as they are not a minor. However, if a woman were to adopt a son, the woman must be twenty one years of age or older.[5] If the child is adopted and there are more than one wife living in the household, then the senior wife is classified as the legal mother of the adopted child.

WHO CAN BE ADOPTED ? The adopted child can be either male or female. The adopted child must be fall under the Hindu category. The adoptee needs also to be unmarried; however, if the particular custom or usage is applicable to the involved parties then the adoptee can be married. The child cannot be the age of sixteen or older, unless again it is custom or the usage is applicable to the involved parties. An adoption can only occur if there is not a child of the same sex of the adopted child still residing in the

home. In particular, if a son were to be adopted then the adoptive father or mother must not have a legitimate or adopted son still living in the house.

Persons who may 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 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 take in adoption

LEGAL IMPLICATIONS FOR AN ADOPTED CHILD From the date of the adoption, the child is under the legal guardianship of the new adopted parent(s) and thus should enjoy all the benefits from those family ties. This also means that this child, therefore, is cut off from all legal benefits (property, inheritance, etc.) from the family who had given him or her up for adoption.

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.

Capacity of a female Hindu to take in adoption.Any female Hindu(a) who is 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.

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 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 authrorised by the State Government in this behalf.

MAINTENANCE MAINTENANCE OF A WIFE A Hindu wife is entitled to be provided for by her husband throughout the duration of her lifetime. Regardless of whether the marriage was formed before this Act was instated or after, the Act is still applicable. The only way the wife can null her maintenance is if she renounces being a Hindu and converts to a different religion, or if she commits adultery. The wife is allowed to live separately from her husband and still be provided for by him. This separation can be justified through a number of different reasons, including if he has another wife living, if he has converted to a different religion other than Hinduism, if he has treated her cruelly, or even has a violent case of leprosy. If the wife is widowed by her late husband, then it is the duty of the father-in-law to provide for her. This legal obligation only comes into effect if the widowed wife has no other means of providing for herself. If she has land of her own, or means of an income and can maintain herself then the father-in-law is free from obligation to her. Additionally, if the widow remarries then her late husband's father-in-law does is not legally bound by this Act anymore as well.

Maintenance of a Child or of Aged Parent(s) Under this Act, a child is guaranteed maintenance from his or her parents until the child ceases to be a minor. This is in effect for both legitimate and illegitimate children who are claimed by the parent or parents. Parents or infirmed daughters, on the other hand, must be maintained so long as they are unable to maintain for themselves.

Amount of Maintenance Provided The amount of maintenance awarded, if any, is dependent on the discretion of the courts. Particular factors included in the decision process include the position or status of the parties, the number of persons entitled to maintenance, the reasonable wants of the claimants, if the claimant is living separately and if the claimant is justified in doing so, and the value of the claimant's estate and income. If any debts are owed by the deceased, then those are to be paid before the amount of maintenance is awarded or even considered.

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 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 award 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 claimants. (e) the number of persons entitled to maintenance, if any, to be awarded to a dependant under this Act, regard shall be had to – (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 provisions, 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 dependants. (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.

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.

Amount of maintenance may be altered on change of circumstances.The amount 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.

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.

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.

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