Adoption, Maintenance, and Guardianship notes — Unit 5

Historically, adoption in Hindu law was a religious act designed to secure a son to perform funeral rites (Shraddha). The Hindu Adoptions and Maintenance Act (HAMA), 1956, completely secularized the law, allowing the adoption of daughters and permitting women to adopt independently.

⇒1.1 Valid Adoption Conditions

• Capacity of Male: Any adult Hindu male of sound mind can adopt. If he has a living wife, he must obtain her consent (unless she has renounced the world, converted, or is of unsound mind).
• Capacity of Female: Before 2010, a married woman could not adopt. The 2010 Amendment allowed married women to adopt with the consent of their husband.
• Who can give in adoption? Only the father, mother, or guardian (with court permission). Father must have the mother's consent.
• Who can be adopted? Must be a Hindu, not already adopted, unmarried, and under 15 years of age (unless custom allows otherwise).

⇒1.2 The Age Gap Rule

To prevent abuse, the Act dictates strict age gaps if adopting a child of the opposite sex:

• If a male adopts a female child, he must be at least 21 years older than her.
• If a female adopts a male child, she must be at least 21 years older than him.

Maintenance includes provision for food, clothing, residence, education, and medical attendance. It is a personal legal obligation under Hindu Law.

⇒2.1 Maintenance of Wife (Section 18)

A Hindu wife is entitled to be maintained by her husband during her lifetime. She can even live separately and claim maintenance if the husband is guilty of desertion, cruelty, suffering from leprosy, has another wife living, or converts to another religion.

• Forfeiture: She loses the right to maintenance if she is unchaste (commits adultery) or ceases to be a Hindu by conversion to another religion.

⇒2.2 Widowed Daughter-in-law (Section 19)

A father-in-law is obligated to maintain his widowed daughter-in-law ONLY if:

• She is unable to maintain herself from her own earnings or other property.
• She cannot obtain maintenance from the estate of her husband, her parents, or her children.
• The father-in-law has 'coparcenary property' in his possession out of which she has not obtained a share.
• (Note: The obligation ends immediately if she remarries).

⇒2.3 Children and Aged Parents (Section 20)

A Hindu is bound to maintain his/her legitimate or illegitimate children (until they are adults) and aged/infirm parents (including a childless step-mother) if they are unable to maintain themselves.

A minor is a person who has not completed the age of 18 years. The HMGA deals with who has the legal right to take care of the minor's person and property.

⇒3.1 Natural Guardian (Section 6)

For a Hindu minor boy or unmarried girl, the natural guardian is the father, and after him, the mother.

• Custody of young child: The custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother.
• Illegitimate child: For an illegitimate boy/unmarried girl, the natural guardian is the mother, and after her, the father.
• Married Girl: The natural guardian of a married minor girl is her husband.

⇒4.1 Welfare of the Minor (Section 13)

The paramount consideration in the appointment or declaration of any person as guardian of a Hindu minor by a court shall be the welfare of the minor.

• If a father demands custody simply based on his statutory right under Section 6, the court will deny him if giving custody to the father is not in the 'welfare of the child'. Welfare overrides all statutory rights of parents.

⇒Summary of Key Takeaways

• Adoption (HAMA): Secularized. Requires wife's consent. Strict 21-year age gap required if adopting a child of the opposite sex.
• Maintenance (HAMA): Wife loses right if unchaste/converts. Daughter-in-law gets maintenance only if father-in-law has coparcenary property.
• Guardianship (HMGA): Father, and 'after him' the mother (interpreted as 'in absence of' in Githa Hariharan).
• Welfare Principle: The child's welfare is the paramount consideration, overriding all parental rights.

⇒University Exam Tips for this Unit

• The 21-Year Rule: Frequently asked in short notes. Ensure you specify that the age gap rule applies only when adopting a child of the opposite sex.
• Mother as Guardian: Always cite Githa Hariharan when discussing the mother's right to guardianship while the father is alive. It demonstrates a deep understanding of judicial activism in family law.
• De Facto Guardian: Remember that Section 11 completely abolished the power of a de facto guardian to alienate (sell) the minor's property. Any sale by them is void.