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Answer
Adoption, defined as the act of embracing someone else's child and raising it as one's own, holds significant importance in Hindu law. However, the term itself finds no explicit definition in the Hindu Adoption and Maintenance Act of 1956 (HAMA).
To understand the valid requisites for an adoption, sections
6-11 needs to be thoroughly studied. These sections outline the following key
points:
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1.
The person adopting should have the capacity,
and also the right, to take in adoption: sections 7 and 8:
I. Section 7 talks about capacity of Male Hindu to take in
adoption son or daughter on fulfilling following conditions:-
a) If he is Hindu;
b) If he is of sound mind;
c) If he is not a minor;
d) In case, he has a wife living, then he shall take the
consent of his wife.
e) In case, he has a unsound wife declared by court or if
wife has renounced the world or ceased to be Hindu then consent is not
necessary.
f) In case, he has more than one wife then consent of all
wife is necessary.
II. Section 8 talks about capacity of Female Hindu to take
in adoption son or daughter on fulfilling following conditions:-
a) If she is Hindu;
b) If she is of sound mind;
c) If she is not a minor;
d) In case, she has a Husband living, then she shall take
the consent of her Husband.
e) In case, she has a unsound Husband declared by a court or
if husband has completely & finally renounced the world or ceased to be
Hindu, then consent is not necessary.
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2.
The person giving in adoption should also have
the capacity to do so: section 9.
I. Only natural father and mother, or the guardian of a
child have capacity to give child in adoption. [Sec 9(1)]
II. Father or the mother (if alive) have equal right to give
a son or daughter in adoption. [Sec 9(2)]
III. Right to give in adoption cannot be exercised by either
father or mother without consent of other, unless one of them has completely
& finally renounced the world, or has ceased to be Hindu, or declared
unsound mind by a court of competent jurisdiction. [Sec 9(3)]
IV. If father or mother of child are dead, or renounced the
world, or abandoned child, or declared unsound mind by court of competent
jurisdiction or Parentage of child is unknown, then guardian can give in
adoption with permission of the court. [Sec 9(4)].
Question: Discuss
the Doctrine of Frustration as applicable under Section 56 of Indian Contract
Act, 1872.
3.
The child who is going to be adopted must be in
the proper condition for an adoption: section 10:
I. He must be a Hindu,
II.
e must be unmarried, customs being an exception.
III. He should not have completed age of 15 years, customs
being an exception.
4. Other
Conditions (Section 11):
I. If adoption is of a son, then adoptive parents must not
have a Hindu son, son’s son or son’s son’s son (Legitimate or Adoption) living
at the time of adoption; [Sec 11(1)]
II. If adoption is of a daughter, then adoptive parents must
not have a Hindu daughter or son’s daughter (Legitimate or Adoption) living at
the time of adoption; []
III. If adoption is by a male and the person adopted is
female, then adoptive father is at least 21-year older than the person to be
adopted;
IV. If adoption is by a female and the person adopted is
male, then adoptive mother is at least 21-year older than the person to be
adopted;
V. No child can be adopted twice,
VI. There must be actual given & taken in adoption by
the parents or guardian.
In the case of D. R. Patil vs. Shamgonda, it was declared
that a lunatic child can also be adopted.
In case of Golak Chandra vs. Kratibas: it was held that any
adoption made in derogation to the conditions laid down in Section 11 would be
invalid.
Also read: Difference
Between Contract of Indemnity and Guarantee (Contract Law)
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