The sole object of adoption is to provide a child to the parentless and a home. It is a means by which the family line is prevented from extinction. Under the old Hindu Law, there were many restrictions regarding adoption but under the modern Hindu law, a person cannot adopt more than one male & female child. This provision is provided under section 11 of Hindu Adoption & maintenance Act, 1956.
Every Hindu, male or female has the capacity to make adoption if they are of major and sound mind. A married Hindu male can adopt only with the consent of his wife. A married male can even adopt without the consent of his wife and the married woman can also adopt a child if the other spouse has ceased to be a Hindu by converting to some other religion or has finally & completely renounced the world or has become of unsound mind. It is to be kept in mind that when a child of opposite gender is adopted, the adopter must be at-least twenty-one years old and the adopted child must be below fifteen years in age & unmarried.
After the death of the parents or when the parents have abandoned the child or they have renounced the world, then, the child’s guardian may give the child in adoption with the permission of the court. This provision is provided under section 9(4) of the Act. A very important thing is to be kept in mind during the process of adoption is that the adopters cannot the adopted child in adoption. The adopter as well as the child must be Hindu. The Hindu Adoption and Maintenance Act, 1956 does not lay down any requirement of residence, domicile or nationality. For instance, a Hindu parent can give the child to someone who is also Hindu irrespective of the fact whether that person is an Indian national or alien or domiciled in India or abroad.
In the case of Re Sister Gemma, an unclaimed, destitute and orphan child was sent to one Mercy Home at the age of one year. A French lady who domiciled & resided in France wanted to adopt the child so that she could educate & look after the child. When the application for appointment of a guardian was done, then, court observed that the child was destitute and there was no one for him to take care. So, the court held that if the French lady adopted the child, then it would be for the welfare of the child. Usually, under the said Act, there is no provision for any provisional orders of adoption.
Under the Hindu law, an adopted child is treated just like a natural child. Under section 12(a) of the Act, it lays down that the adopted child is related to all the relations on the side of their adoptive father & mother as they would have been if they were naturally born to them.
A comprehensive statute of adoption was passed in 1950, modified in 1958. Finally, the Act of 1968 came whose purpose was to give effect to the Hague convention on Adoption of children, 1965 in which England is also a part. Under the English law, the jurisdiction of the court exists only on the twin conditions that the applicant is domiciled in England or Scotland And the child & applicant are resident in England .
English law differs from Hindu law in the sense that the English law confers on the court power to make a provisional order of adoption. It is a criminal offence under the English law that any person other than the parent, guardian or relative takes or sends a child of British origin out of Great Britain for adoption. Whenever an adoption order is made in respect of a child, its effect is to extinguish all rights, duties and obligations along with the liabilities, maintenance & education and to vest all such rights, duties, obligations, liabilities as if the child were born out of lawful wedlock .
English courts have recognised adoptions where the adopter And the child & adopter are residents of England only because English law is wedded to the doctrine under which personal status is governed by lex domicilii . In the case of Re valentine’s settlement, where a South Rhodesian couple domiciled in South Africa and adopted a boy & girl under the adoption order from the South Africa court. According to the Rhodesia law, these children were not recognised for adoption. This case basically stated that if the adoption is valid by the law of adopter’s domicile, then, adoption is valid considering whatever the law in the child’s domicile.
In conclusion, the Indian law regarding foreign adoptions are not yet developed. In the case of C.S Natraja Vs C.S Subbaraya , one Shadashive died domiciled in Pondicherry. His wife continued to be domiciled there and adopted a male child of three years of age. When the question of validity of the adoption came up in the court, it was held that such adoption was not valid as the widow had no capacity to adopt any child of her own. The court finally held that since the woman had been domiciled in Pondicherry, her capacity to adopt was governed by French law. It is to be kept in mind that the adoption between the countries must be done between the convention countries. A ‘Convention country’ means any country excluding Great Britain and a specified country, for the time being designated by an order of the secretary of the state .
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