The document discusses Hindu succession, adoption, and guardianship under Indian law. Some key points:
1) The Hindu Succession Act of 1956 governs inheritance for Hindus and applies to Hindus, Buddhists, Sikhs and Jains. Property descends to class I heirs like sons and daughters before class II heirs.
2) Adoption is governed by the Hindu Adoption and Maintenance Act of 1956. Adoptive parents must be Hindu, over 21 years older, and cannot have a biological son living. Only one child of each sex can be adopted.
3) The Hindu Minority and Guardianship Act applies to Hindus and some non-Hindus in India. It
4. This act applies to-
1) Any person who is a Hindu by
religion in any of its forms or
development.
2) To any person who is a Buddhist or
Jain or Sikh by religion.
3) To any other person who is not
Muslim or Christian parsi or Jew by
religion.
5. In the case of Males
The property of Hindu male dying
intestate, or without a will, would be
given first to heir’s within the class1.
If there are no heir’s in class 1the
property will be given heir’s within
class 11. If there are no heir’s in
class 11 the property will given to the
agnates or relatives through male
lineage.
6. Class 11
1. Father son’s daughter’s son
2. Son’s daughter’s daughter son
3. Sister daughter son’s son
4. Daughter son’s daughter
5. Daughter’s daughter’s daughter
6. Brother’s son sister’s son
7. Brother’s daughter
7. In the case of Females
The property of a Hindu female dying
intestate, or without a will, shall
devolve,
1. Upon the son’s and daughter’s.
2. Upon the heir’s of the husband.
3. Upon the heir’s of the father
4. Upon the heir’s of the mother
8. Exceptions
1. Any person who commits murder is
disqualified from receiving any form
of inheritance from the victim
2. If a relative coverts to Hinduism he or
she is still eligible for inheritance.
3. The descendants of the converted
relative are disqualified from
receiving inheritance from their
Hindu relatives.
10. Adoption is carried out in India under
different Acts. In India, adoption of
children by Hindu adults is governed
by the Hindu Adoption and
Maintenance Act, 1956 (referred as
“HAMA”)
11. There are other legislations which also
deal with the adoption:
1) The Guardians and Wards Act, 1890
(GAWA)
2) Juvenile Justice (Care and
Protection) Amendment Act, 2010
(J.J. Act)
12. Provisions
Under HAMA can adopt a child of each sex
but no two children of the same sex which
means
if having a son, can adopt only a female child
and vice-versa.
Non Hindu persons such as Muslims,
Christians, Paris and Jews etc are governed
by their own effected personal laws come
under GAWA, 1890.
Central Adoption Resource Authority (CARA)
also has provision regarding the adoption in
the Country it facilitates the inter-country
adoption and inter-religion adoption.
13. Why legal adoption
Legal adoption is provides an
extended security for the adopted
child. It ensures the status of the child
in the adoptive family. A legally
adopted child can enforce all his/her
rights in the Court of Law. On the
contrary, informal adoptions do not
carry any legal enforcement and are
gross violation of the law of the land.
14. As per Supreme Court of India’s
Direction, specific guidelines have
been laid down by the Central
Adoption Resource Authority
(CARA), the apex controlling body in
matter relating to adoption in India
under the Ministry of Women and
Child Development for legal
adoption of Indian Children.
15. Section 7 of the Act states Capacity
of a male Hindu to take in adoption
which states 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.
16. Section 8 of the Act has been
amended in 2010 which serve the
purpose of equality when it comes to
taking consent with other spouse while
adopting a child. Section 8 (after
amendment in 2010) talks about
Capacity of a female Hindu to take in
adoption which reads as,
“Any female Hindu who is of sound mind
and is not a minor has the capacity to
take a son or daughter in adoption:
17. Section 9 (2) of the Act have a
provision that the father or the
mother, if alive, shall have equal
right to give a son or daughter in
adoption.
18. 1) According to the Act same sex child cannot be adopted in
the family. If any adoption is of son or daughter, the
adoptive father or mother by whom the adoption is made
must not have a Hindu son or daughter or son’s son or
son’s daughter (whether biological or by adoption) living
at the time of adoption.
2) 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;
3) 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;
4) a child can be adopted by a couples/single person only.
19. Who can adopt
1) You and your spouse are below 45 years of age
and your composite age does not exceed 90
years. If beyond 45, you will be required to adopt
an older child proportionately to the number of
years in excess of 45. In no case the age of
prospective adoptive parents (PAP) should exceed
55 years.
2.)Adoptive parents must be financially stable and
must have reasonable regular source of income.
3)They must be physically fit and mentally sound to
rear up a child.
4. )They must have a genuine motivation to adopt a
child.
20. No adoption shall be valid unless following
conditions are fulfilled:
(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 act.
21. Person capable of giving
adoption1) No person except the father or mother or the guardian of a child shall have the capacity to
give the child in adoption.
(2) Where both the father and mother are dead or have 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.
(3) Before granting permission to guardian for adoption 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.
22. Persons who may be adopted:
No person shall be capable of being taken in
adoption unless the following conditions are
fulfilled:
(i) He or she is a Hindu
(ii) He or she has not already be adopted earlier
(iii) He or she has not 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
23. Today child adoption in India is being
governed by the Hindu Adoption and
Maintenance Act, 1956.
1. HAMA is not child oriented but parent
oriented It is a religion specific Act.
2. It does not allow adoption of two
children of the same sex by one adoptive
couple.
3. It does not allow for adoption of a child
of the same sex as the biological child.
4. The adoptive mother is only a
consenting party and not a joint
petitioner.
24. My Case
A child was adopted by a old couple when the man
was 53 and the he was a govt. employee. women was
45 old. The adopted child was only 6th std at that time.
After 5 year the man passed away and his wife got the
job. After few months lady become bedridden and her
husband’s sister came and stay with her and the boy.
Relatives were worried about the property will go to the
adopted boy. So relatives removed all documents of
adoption from the home and they made the bedridden
women forcefully to sign all the papers related to
property. Removal of adoption related papers made the
boy away from getting a job. At last he found the place
were the couple adopted him and he got his adopted
papers . Later he filed a case against the relatives and
got all property right.
26. 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
(c) to any person resides in the territories to which
this Act extends 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 that law in respect of any of the matters
dealt with herein if this Act had not been passed.
27. 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.
(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.
28. Definitions.- In this Act,-
a) "minor" means a person who has not completed
the age of eighteen years;
(b) "major" means a person having the care of the
person of a minor or of his property or of both
his person and property, and includes-
(i) a natural guardian,
(ii) a guardian appointed by the will of the
minor's father or mother,
(iii) a guardian appointed or declared by a court,
and
(iv) a person empowered to act as such by or
under any enactment relating to any court of
wards;
29. Powers of natural guardian
1) The natural guardian of a Hindu minor has power,
subject to the provisions of this section, to do all acts
which are necessary or reasonable and proper for the
benefit of the minor or for the realization, protection or
benefit of the minor's estate.
(2) The natural guardian shall not, without the previous
permission of the court,- (a) mortgage or charge, or
transfer by sale, gift, exchange or otherwise any part of
the immovable property of the minor or (b) lease any part
of such property for a term exceeding five years or for a
term extending more than one year beyond the date on
which the minor will attain majority.
30. The guardian so appointed by will has
the right to act as the minor's guardian
after the death of the minor's father or
mother, as the case may be, and to
exercise all the rights of a natural
guardian under this Act to such extent
and subject to such restrictions, if any,
as are specified in this Act and in the
will. The right of the guardian so
appointed by will shall, where the
minor is a girl, cease on her marriage.
31. Welfare of minor to be paramount
consideration.-
1) In the appointment of declaration of any
person as guardian of a Hindu minor by a
court, the welfare of the minor shall be the
paramount consideration.
(2) No person shall be entitled to the
guardianship by virtue of the provisions of
this Act or of any law relating to
guardianship in marriage among Hindus, if
the court is of opinion that his or her
guardianship will not be for the welfare of
the minor.
