Last Updated: Tuesday November 04, 2008
The Hindu Adoptions’ and Maintenance Act, 1956 (Indian)
Section 1 is missing
2. Application of Act.- (1)
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, Bramho, Prathana or Arya Samaj.
(b) to any person who is a Buddhist, Jaina or Sikh
by religion, and
(c) to any other person 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.
Explanation.- The following persons are Hindus,
Buddhist, Jainas or Sikhs by religion, as the case may be:-
(a) any child, legitimate or illegitimate, one of
whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is
brought up as a member of the tribe, community, group or family to which such
parent belongs or belonged.
(bb) any child, legitimate or illegitimate, who has
been abandoned both by his father and mother or whose parentage is not known
and who in either case is brought up as a Hindu, Buddhist, Jaina or Sikh, and
(c) any person who is convert or reconvert to the
Hindu, Buddhist, Jaina or Sikh religion.
(2) 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 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, through not a
Hindu by religion, is, nevertheless, a person to whom this Act applies by
virtue of the provisions contained in this section.
3. Definitions.- In this
Act,
(a) the expression "custom" and
"usage" signify and rule which, having been continuously and
uniformly observed for a long time, has obtained the force of law among Hindus
in any local area, tribe, community, group or family:
Provided that the rule is certain and not
unreasonable or opposed to public policy and Provided further that, in the case
of a rule applicable only to a family, it has not been discontinued by the
family;
(b) Maintenance include-
(i) in all cases, provision for food, clothing,
residence, education and medical attendance and treatment,
(ii) in the case of an unmarried daughter, also the
reasonable expenses of an incident to her marriage,
(c) "minor" means a person who has not
completed his or her age of eighteen years.
4. Overriding effect of Act.- Save
as otherwise expressly provided in this Act,-
(a) any text, rule or interpretation of Hindu law
or any custom or usage as part of that law in force immediately before the
commencement of this Act shall cease to have effect with respect to any matter
for which provision is made in this Act,
(b) any other law in force immediately before the
commencement of this Act shall cease to apply to Hindus in so far as it is
inconsistent with any of the provisions contained in this Act.
5. Adoption to be regulated by this
Chapter. - (1) No adoption shall be made after the
commencement of this Act by or to a Hindu except in accordance with the
provisions contained in this Chapter, and any adoption made in contravention of
the said provisions shall be void.
(2) An adoption which is void shall neither create
any rights in the adoptive family in favour of any person which he or she could
not have acquired except by reason of the adoption, nor destroy the rights of
any person her birth.
6. Requisites of a valid adoption.- No
adoption shall be valid unless-
(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, and
(iv) the adoption is made in compliance with the
other conditions mentioned in this Chapter.
7. Capacity of male Hindu to take in
adoption.- 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:
Provided that, if he has a wife living, he shall
not adopt except with the consent of his wife unless the wife has completely
and finally renounced the world or has ceased to be a Hindu or has been
declared by a court of competent jurisdiction to be of unsound mind.
Explanation.- If a person has more than one wife
living at the time of adoption, the consent of all the wives in necessary
unless the consent of any one of them is unnecessary for any of the reasons
specified in the preceding priviso.
8. Capacity of a female Hindu to take in
adoption.- Any female Hindu-
(a) who is sound mind,
(b) who is not a minor, and
(c) who is not married, or if married, whose
marriage has been dissolved or whose husband is dead or has completely and
finally renounced the world or has ceased to be a Hindu or has been declared by
a court of competent jurisdiction to be of unsound mind.
Has the capacity to take a son or daughter in
adoption.
9. Persons capable of giving in adoption.- (1) No
person except the father or mother or the guardian of a child shall have the
capacity to give the child in adoption.
(2) Subject to the provisions of sub-section (3)
and sub-section
(4), the father, if alive, shall alone have the
right to give in adoption, but such right shall not be exercised save with the
consent of the mother unless the mother has completely and finally renounced
the world or has ceased to be a Hindu or has been declared by a court of
competent jurisdiction to be of unsound mind.
(3) The mother may give the child in adoption if
the father is dead or has completely and finally renounced the world or has
ceased to be a Hindu or has been declared by a court of competent jurisdiction
to be of unsound mind.
(4) Where both the father and mother are dead or
have completely and 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.
(5) Before granting permission t a guardian under
sub-section (4), 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.
Explanation.- For the purposes of this section -
(i) the expression "father" and
"mother" do not include an adoptive father and an adoptive mother.
(ia) "guardian" means a person having the
care of the person or a child or of both his person and property and includes -
(a) a guardian appointed by the will of the child’s
father or mother, and
(b) a guardian appointed or declared by a court,
and
(ii) "court" means the city civil court
or a district court within the local limits of whose jurisdiction the child to
be adopted ordinarily resides.
Sections 10 & 11 are missing
12. Effects of adoption.- An
adopted child shall be deemed to tbe the child of has or her adoptive father or
mother for all purposes with effect from the date of the adoption and from such
date all the ties of the child in the family of his or her birth shall be
deemed to be served replaced by those created by the adoption in the adoptive
family:
Provided that-
(a) the child cannot marry any person whom he or
she could not have married if he or she had continued in the family of his or
her birth.
(b) any property which vested in the adopted child
be before the adoption shall continue to vest in such person subject to the
obligations, if any, attaching to the ownership of such property, including the
obligation to maintain relatives in the family of his or her birth.
(c) the adopted child shall not divest any person
of any estate which vested in him or her before the adoption.
13. Right of adoptive parents to dispose of their
properties.- Subject
to any agreement to the contrary an adoption does not deprive the adoptive
father or mother of the power to dispose of his or her property by transfer
inter vivos or by will.
14. Determination of adoptive mother in certain cases.- (1) Where Hindu who has a wife living adopts a child, she shall be deemed to be the adoptive mother.
(2) Where an adoption has been made with the consent of more than one wife, the senior most in marriage among them shall be deemed to be the adoptive mother and the others to be step-mothers.
(3) Where a widower or a bachelor adopts a child,
any wife whom he subsequently marries shall be deemed to be the step-mother of
the adopted child.
(4) Where a widow or an unmarried woman adopts a
child, any husband whom she marries subsequently shall be deemed to be the
step-father of the adopted child.
15. Valid adoption not to be cancelled. - No adoption which has been validly
made
can be cancelled by the adoptive father or mother or any other person, nor can
be adopted child renounce his or her status as such and return to the family of
his or her birth.
16. Presumption as to registered documents relating to
adoption.- Whenever
any document registered under any law for the time being in force is produced
before any court purporting to record an adoption made and is signed by the
person giving and the person taking the child in adoption, the court shall
presume that the adoption has been made in compliance with the provisions of
this Act unless and until it is disproved.
17. Prohibition of certain payments.- (1) No
person shall receive or agree to receive any payment or other reward in
consideration of the adoption of any person, and no person shall make or give
or agree to make or give to any other person any payment or reward of which is
prohibited by this section.
(2) If any person contravenes the provisions of
sub-section (1), he shall be punishable with imprisonment which may extend to
six months, or with fine, or with both.
(3) No prosecution under this section shall be
instituted without the previous sanction of the State Government or an officer
authrorised by the State Government in this behalf.
18. Maintenance of wife.- (1)
Subject to the provisions of this section, a Hindu wife, whether married before
or after the commencement of this Act, shall be entitled to be maintained by
her husband during her life time.
(2) A Hindu wife shall be entitled to live
separately from her husband without forfeiting her claim to maintenance-
(a) if he is guilty of desertion, that is to say,
of abandoning her without reasonable cause and without her consent or against
her wish, or willfully
neglecting
her.
(b) if has treated her with such cruelty as to
cause a reasonable apprehension in her mind that it will be harmful or injuries
to live with her husband.
(c) if he is suffering from a virulent form of
leprosy.
(d) if he has any other wife living.
(e) if he keeps a concubine in the same house in
which his wife is living or habitually resides with a concubine elsewhere.
(f) if he has ceased to be a Hindu by conversion to
another religion.
(g) if there is any other cause justifying living
separately.
(3) A Hindu wife shall not be entitled to separate
residence and maintenance from her husband if she is unchaste or ceases to be a
Hindu by conversion to another religion.
19. Maintenance of widowed
daughter-in-law.- (1) A Hindu wife, whether married before or after
the commencement of this Act, shall be entitled to be maintained after the
death of her husband by her father-in-law.
Provided and to the extent that she is unable to
maintain herself out of her own earnings or other property or, where she has no
property of her own, is unable to obtain maintenance-
(a) from the estate of her husband or her father or
mother, or
(b) from her son or daughter, if any, or his or her
estate.
(2) Any obligation under sub-section (1) shall not
be enforceable if the father-in-law has not the means to do so from any
coparcenary property in his possession out of which the daughter-in-law has not
obtained any share, and any such obligation shall case on the re-marriage of
the daughter-in-law.
20. Maintenance of children and aged
parents.- (1) Subject to the provisions of this section a
Hindu is bound, during his or her lifetime, to maintain his or her legitimate
or illegitimate children and his or her aged or inform parents.
(2) A legitimate or illegitimate child may claim
maintenance from his or her father or mother so long as the child is a minor.
(3) The obligation of a person to maintain his or
her aged or infirm parent or a daughter who is unmarried extends in so far as
the parent or the unmarried daughter, as the case may be, is unable to maintain
himself or herself out of his or her own earnings or other property.
Explanation.- In this section "parent" includes a childless step-mother.
21. Dependants defined.- For the
purposes of this chapter "dependants" means the following relatives
of the deceased.
(i) his or her father.
(ii) his or her mother,
(iii) his widow, so long as she does not re-marry.
(iv) his or her son or the son of his predeceased
son or the son of a predeceased son of his predeceased son, so long as he isn
minor, provided and to the extent that he is unable to obtain maintenance, in
the case of a grandson from his father’s or mother’s estate, and in the case of
a great grand-son, from the estate of his father or mother or father or
father’s mother.
(v) his or her unmarried daughter or the unmarried
daughter of his predeceased son or the unmarried daughter of a predeceased son
of his predeceased son, so long as she remains unmarried, provided and to the
extent that she is unable to obtain maintenance, in the case of a
grand-daughter from her father’s or mother’s estate and in the case of a
grand-daughter form her father’s or mother’s estate and in the case of a
great-grand-daughter from the estate of her father or mother or father’s father
or father’s mother.
(vi) his widowed daughter, provided and to the
extent that she is unable to obtain maintenance -
(a) from the estate of her husband, or
(b) from her son or daughter if any, or his or her
estate, or
(c) from her father-in-law or his father or the
estate of either of them.
(vii) any widow of his son or of a son of his
predeceased son, so long as she does not remarry: provided and to the extent
that she is unable to obtain maintenance from her husband’s estate, or from her
son or daughter, if any, or his or her estate, or in the case of a grandson’s
widow, also from her father-in-law’s estate.
(viii) his or her minor illegitimate son, so long
as he remains a minor.
(ix) his or her illegitimate daughter, so long as
she remains unmarried.
22. Maintenance of dependants, - (1)
Subject to the provisions of sub-section (2) the heirs of a deceased Hindu are
bound to maintain the dependants of the deceased out of the estate inherited by
them from the deceased.
(2) Where a dependant has not obtained, by
testamentary or intestate-succession, any share in the estate of a Hindu dying
after the commencement of this Act, the dependant shall be entitled, subject to
the provisions of this Act, to maintenance from those who take the estate.
(3) The liability of each of the persons who takes
the estate shall be in proportion to the value of the share or part of the
estate taken by him or her.
(4) Notwithstanding anything contained in
sub-section (2) or sub-section (3), no person who is himself or herself a
dependant shall be liable to contribute to the maintenance of others, if he or
she has obtained a share or part, the value of which is, or would, if the
liability to contribute were enforced, become less than what would be awarded
to him or her by way of maintenance under this Act.
23. Amount of maintenance.- (1) It
shall be in the discretion of the Court to determine whether any, and if so
what, maintenance shall be awarded under the provisions of this Act, and in
doing so, the court shall have due regard to the considerations set out
sub-section (2), or sub-section (3), as the case may be, so far as they are
applicable.
(2) In determining the amount of maintenance, if
any, to be award to a wife, children or aged or infirm parents under this Act,
regard shall be had to –
(a) the position and status of the parties.
(b) the reasonable wants of the claimant
(c) if the claimant is living separately, whether
the claimant is justified in doing so,
(d) the value of the claimant’s property and any
income derived from such property, or from the claimants.
(e) the number of persons entitled to maintenance,
if any, to be awarded to a dependant under this Act, regard shall be had to -
(3) In determining the amount of maintenance, if
any, to be awarded to a dependant under this Act, regard shall be had to -
(a) the net value of the estate of the deceased
after providing for the payment of his debts.
(b) the provisions, if any, made under a will of
the deceased in respect of the dependant.
(c) the degree of relationship between the two.
(d) the reasonable wants of the dependants.
(e) the past relations between the dependant and
the deceased.
(f) the value of the property of the dependant and
any income derived from such property, or from his or her earnings or from any
other source.
(g) the number of dependants entitled to
maintenance under this Act.
24. Claimant to maintenance should be a Hindu.- No person shall be entitled to
claim maintenance under this Chapter if he or she has ceased to be a Hindu by
conversion to another religion.
25. Amount of maintenance may be altered on change of
circumstances.- The
amount maintenance, whether fixed by a decree of court or by agreement, either
before or after the commencement of this Act, may be altered subsequently if
there is a material change in the circumstances justifying such alteration.
26. Debts to have priority.- Subject to the provisions contained
in section 27 debts of every description contracted or payable by the deceased
shall have priority over the claims of his dependants for maintenance under
this Act.
27. Maintenance when to be a charge.- A dependant’s claim for
maintenance under this Act shall not be a charge on the estate of the deceased
or any portion thereof, unless one has been created by the will of the
deceased, by a decree of court, by agreement between the dependant and the
owner of the estate or portion, or otherwise.
28. Effect of transfer of property on right
to maintenance.- Where a dependant has a right to receive
maintenance out of an estate, and such estate or any part thereof is
transferred, the right to receive maintenance may be enforced against the
transferee if the transferee has notice of the right or if the transfer is
gratuitous, but not against the transferee for consideration and without notice
of the right.
(vi) any widow of his son or of son of his
predeceased son, so long as she does not remarry, provided and to the extent
that she is unable to obtain maintenance from her husband’s estate, or from her
son or daughter, if any, or his or her estate, or in the case of a grandson’s
widow, also from her father-in-law’s estate.
29. Repeals.- (Rep.
By the Repealing and Amending Act, 1960 (58 of 1960), sec. 2 and Sch.1).
30. Savings.- Nothing contained in this Act shall affect any adoption made before the commencement of this Act, and the validity and effect of any such adoption shall be determined as if this Act had not been passed.
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