Mitakshara law or DayfibhUga law guided the Hindu families and supported the practice of adoption and inheritance. These two schools acknowledged the ultimate authority of the ancient treatises and opinions. The Dayabhaga School is prevalent in Bengal and the Mitakshara School is located in other parts of India. These schools offer different views in regard to the adoption and inheritance living in a joint family property. Its specific law governed the regional location. The Hindu Adoption and Maintenance Act 1956 have, since superseded these laws prevalent in different regions.
Adoption among the Hindus was prevalent in the Vedic age. Aitreye Brahamana was looked into before Viswamitra adopted Sunassepha to himself. Atri - the rishi was said to have given away his only son in adoption. As the son of the selected daughters got property from his mother's father, the children of other daughters felt distressed and unhappy. The other daughters could declare their claim to the inheritance as time went on.
Eventually a rule was introduced that no man can be interested to marry a brother-less woman, eventually such daughters faced quite difficulty in getting married. The son of an adopted daughter, however good might be his character was considered to be a Sapinda, i.e he belonged to different gotra. Therefore, the Hindu society had to was almost forced to consider and go for the adoption of a son.
The lawgivers of Hinduism like Baudhayana, Gautama and Manu, particularly mentioned the adopted son's status in the family after ensuring from Aurasa and Kshetraja sons. Apastamba came up with a new advancement. Vasishta selected the eighth place for his adopted son. Yagnavalkya, Manu and Narada had given their adopted son seventh, sixth and ninth positions respectively according to the order of sons.
It was not known whether adoption came out of religious reasons or secular motives, but somehow the deed always helped the society. This custom received identification after the decline of Gupta Empire and specifically during the Muslim era. The idea was to retain the property in the family sphere. Religious view was also a reason. The need for a male to perform the obsequies was critically needed. Although the main reasoning factor was the continuation of family line, yet many other religious motives were present in this regard. Adoption once became almost mandatory; otherwise the householder could never escape the tentacles or hell called Punnama Naraka (portion of hell set apart for sonless males).
The sonless father was bound to be without protection or support during the times of sickness or during old age. During the hour of dividing his property, he would see his land passing into the hands of either charity or complete outsiders. The owner cannot cultivate his own wealth due to the lack of a male child.
The inevitability for male progeny was felt in urgency for the Aryans even beyond this world. The father's happiness and peace in the next world or birth depended upon his having a continuous line of male offspring. The duty of these children is to make the periodical offerings for the relaxation of the soul. The texts in Sanskrit books state it to be the first duty of a man is to become the carrier of male offspring and imprecate the curses upon the men who died without a son. So every device was usually adopted to acquire a son, being so indispensable.
The husband was free to adopt a boy, even without the approval of his wife or even in disagreement to her views. The widow was enabled to adopt, either on the power of her husband or with the agreement of the nearest agnates. If the husband died as a part of the joint Hindu family, the widow was forced to obtain the consent of the members of that family. If he died dividing the property, she was eligible to get the property of the nearest spindas.
Her mother-in-law's acquiesce also had a good value, but by itself it was not enough to call for adoption. In the case of prevention by the husband, the widow was deprived of the capacity to adopt. The husband had every right to give away their son, even without asking for the wife's consent. If the bond of the biological mother of the adoptee, with the adoptive father, when the woman was unmarried, was not within the flexible degrees in institution of marriage, then the adoption was considered as valid. This was allowed in the presidency of Madras, under the form of custom, but not in other regions.
In the Bombay school, a man was not allowed to adopt a daughter's son or sister's son or maternal aunt's son. Marriage among these relations was impermissible. A bachelor or widows were allowed to take a boy in adoption, but the child could be only being a male. Adoption was proposed for the welfare and the ease of the husband. The Hindu Adoption and Maintenance Act of 1956 also went by this old system and prevailed in different regions.
According to the Hindu Adaptation and Maintenance Act 1956, adoption is legitimate in the following cases only:
(1) If the person adopting has capacity and the right, to take in adoption.
(2) If the person going for adoption has the capacity to do so
(3) If the person adopted is capable of being taken in adoption and
(4) If the adoption is made in accordance with the other rules mentioned in the Act.
Any male Hindu, who is of perfectly sound mentally and physically and is not a minor, has the right to take a son or a daughter in adoption. The approval of the living wife is necessary, but if she has renounced the world or is not a Hindu, or if declared of unsound mind, the permission of the wife was not needed. Any female Hindu, who is of sound mind and is not a minor, has the right to adopt a child. If the girl is not married, or if married, whose marriage has been ended up or whose husband is dead, has renounced the world, or is no longer a Hindu has been stated by a court of Law to be of unsound mind, can adopt a son or daughter. The adoption rights eventually became flexible and updated.
According to the Act, there are many more rules placed abiding by with the adoption rights.
(1) No person other than the father or mother or the guardian of a child shall have the legal right to give the child in adoption.
(2) If the father is alive, he shall alone have the right to give the child in adoption, but the consent of me mother is essential. Only if the mother has finally renounced the world, has ceased to be a Hindu, or has been said by a court of competent jurisdiction to be of abnormal mind can be in no way responsible to the adoption of the child.
(3) The mother can only give the child in adoption if the father is dead or has completely and finally renounced the world; or he is ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind.
(4) The guardian is allowed to give the child for adoption, if both the parents or husband and the wife have expired, have renounced the world, or are no longer Hindus or have been declared of unsound mind.
The act is in more detailed version with other details regarding persons who may be adopted, effects of adoption, right of adoptive parents, deletion of valid adoption prohibition and so on. This Act is now followed in all regions of India.
(Last Updated on : 12-09-2009)
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