Hindu Adoptions and Maintenance Act, 1956

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The
Hindu Adoptions and Maintenance Act, 19561
(Hindu Adoptions and Maintenance Act, 1956)
[Act 78 of 1956 as amended up to Act 6 of 2019]
[21st December, 1956]
CONTENTS
CHAPTER I
PRELIMINARY
1. Short title and extent
2. Application of Act
3. Definitions
4. Overriding effect of Act
CHAPTER II
ADOPTION
5. Adoptions to be regulated by this Chapter
6. Requisites of a valid adoption
7. Capacity of a male Hindu to take in adoption
8. Capacity of a female Hindu to take in adoption
9. Persons capable of giving in adoption
10. Persons who may be adopted
11. Other conditions for a valid adoption
12. Effect of adoptions
13. Right of adoptive parents to dispose of their properties
14. Determination of adoptive mother in certain cases
15. Valid adoption not to be cancelled
16. Presumption as to registered documents relating to adoption
17. Prohibition of certain payments
CHAPTER III
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MAINTENANCE
18. Maintenance of wife
19. Maintenance of widowed daughter-in-law
20. Maintenance of children and aged parents
21. Dependants defined
22. Maintenance of dependants
23. Amount of maintenance
24. Claimant to maintenance should be a Hindu
25. Amount of maintenance may be altered on change of circumstances
26. Debts to have priority
27. Maintenance when to be a charge
28. Effect of transfer of property on right to maintenance
CHAPTER IV
REPEALS AND SAVINGS
29. Repeals
30. Savings
———
Hindu Adoptions and Maintenance Act, 19561

[Act 78 of 1956 as amended up to Act 6 of 2019] [21st December,
1956]
An Act to amend and codify the law relating to adoptions and maintenance among
Hindus
Be it enacted by Parliament in the Seventh Year of the Republic of India as follows:
Prefatory Note.—The Statements of Objects and Reasons as published in the
Gazette of India, Extra., Part II, Section 2, dated 23rd August, 1956 is reproduced
below:
“This part of the Hindu Code deals with the subject of adoptions and
maintenance among Hindus.
2. With the passing of the Hindu Succession Act, 1956, which treats sons and
daughters equally in the matter of succession, it has now become possible to
simplify the law of adoption among Hindus. The Bill provides for the adoption of
boys as well as girls. There is no longer any justification for allowing a husband to
prevent his wife from taking a child in adoption after his death. The adoption made
by a Hindu widow will hereafter be in her own right. No person need be divested of
any property which has vested in him by reason only of the fact subsequent to such
vesting on adoption has been made. The rule of divesting has been the cause of
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many a ruinous litigation.
3. In the Hindu Succession Act, 1956; a specific provision was inserted whereby
it was declared that the power of a Hindu to make a testamentary disposition of his
property shall not affect the right of maintenance of any heir by reason only of the
fact that under the testamentary disposition the heir has been deprived of a share
in the property to which he would have been entitled if the deceased had died
intestate. An assurance was then given that the Chapter of the Hindu Code relating
to maintenance would be introduced in Parliament as soon as possible. The latter
part of this Bill deals with maintenance. This Chapter does not call for any detailed
comments. It is largely based on the existing law as codified in the Bills of the Rau
Committee and the Select Committee of the provisional Parliament in 1948.”
► Nature, Scope and Object.—The Act provides for adoption of boys as well as girls. A widow
can now adopt a son or daughter to herself in her own right. No questions of divesting of any
property vested in any person arises, she is entitled to take the property absolutely under the
Succession Act, G. Appaswami Chettiar v. R. Sarangapani Chettiar, (1978) 3 SCC 55.
The Act indeed gives a statutory recognition to the well established normal obligation of a Hindu
male or female to maintain his or her unmarried daughter and aged or infirm parents so long as they
are not able to maintain themselves, Wali Ram v. Mukhtiar Kaur, ILR (1969) 2 P&H 534 : AIR 1969
P&H 285.
The purpose of the Act is not only to amend but also to codify the law relating to adoption and
maintenance comprehensively dealing with every phase and aspect of the law specifically dealt with.
With a provision of the nature in Section 4 of the Act giving an overriding effect to the provisions of
the Act, the need to delve at length into the various principles governing adoption under the Sastric
Hindu law based on the ancient texts is considerably averted due to the law laid down by this Court
on more than one occasion, after an exhaustive review of the case-law rendered by the Judicial
Committee of the Privy Council and some of the High Courts, Vijayalakshmamma v. B.T. Shankar,
(2001) 4 SCC 558.
Chapter I
PRELIMINARY
1. Short title and extent.—(1) This Act may be called the Hindu Adoptions and
Maintenance Act, 1956.
(2) It extends to the whole of India 2 [* * *].
► Applicability.—In the absence of specific provisions regarding the procedure to be followed
for the purpose of filing a proceedings under the Hindu Adoptions and Maintenance Act, 1956, the
provisions of the Code of Civil Procedure, 1908 will have to be followed, Pankaj Suryakant Lohar v.
Mayuri Pankaj Lohar, (2002) 4 Mah LJ 828.
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, Prarthana 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, Buddhists, Jainas or Sikhs by
religion, as the case may be:
(a) any child, legitimate or illegitimate, both of whose parents are Hindus,
Buddhists, Jainas or Sikhs by religion;
(b) 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
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tribe, community, group or family to which such parent belongs or belonged, 3
[* * *]
4
[(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 a 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 in the Official Gazette, otherwise directs.
5
[(2-A) Notwithstanding anything contained in sub-section (1), nothing contained
in this Act shall apply to the Renoncants of the Union Territory of Pondicherry.]
(3) The expression “Hindu” in any portion of this Act shall be construed as if it
included a person who, though not a Hindu by religion, is nevertheless, a person to
whom this Act applies by virtue of the provisions contained in this section.
► Customary Adoption.—Burden of proving adoption is heavy and in absence of documentary
evidence in support of adoption, court should be cautious in relying upon oral evidence, Ratanlal v.
Sundarabai Govardhandas Samsuka, (2018) 11 SCC 119.
3. Definitions.—In this Act unless the context otherwise requires—
(a) the expressions “custom” and “usage” signify any 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” includes—
(i) in all cases, provisions for food, clothing, residence, education and medical
attendance and treatment;
(ii) in the case of an unmarried daughter also the reasonable expenses of and
incident to her marriage;
(c) “minor” means a person who has not completed his or her age of eighteen
years.
► Interpretation.—A perusal of Section 3(b) of the Act clearly shows that the intention of the
legislature by including food, clothing, residence, etc. was to provide a real maintenance and not a
bare or starving maintenance. The intention of the legislature is further indicative from the words
“also the reasonable expenses of” appearing in Section 3(b)(ii), clearly meaning thereby that an
unmarried daughter besides the expenses of food, clothing, residence, etc. is also entitled to the
expenses of and incident to her marriage, Ruma Chakraborty v. Sudha Rani Banerjee, (2005) 8
SCC 140.
► Validity of Custom.—A “Custom” as defined in Section 3(a) is a particular rule which has
existed either actually or presumptively from time immemorial, and has obtained the force of law in a
particular locality, although contrary to or not consistent with the general common law of the realm.
A custom to be valid must have four essential attributes. First, it must be immemorial; secondly, it
must be reasonable; thirdly, it must have continued without interruption since its immemorial origin,
and; fourthly, it must be certain in respect of its nature generally as well as in respect of the locality
where it is alleged to obtain and the persons whom it is alleged to affect, Bhimashya v. Janabi,
(2006) 13 SCC 627.
“Custom” cannot be proved by way of logic or analogy. A negative fact cannot be proved by
adducing positive evidence, Laxmibai v. Bhagwantbuva, (2013) 4 SCC 97.
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“Custom” is an established practice at variance with the general law. A custom varying general
law may be a general, local, tribal or family custom. A general custom includes a custom common to
any considerable class of persons. A custom which is applicable to a locality, tribe, sect or a family
is called a special custom. Custom is a rule, which in a particular family, a particular class,
community, or in a particular district, has owing to prolonged use, obtained the force of law. Custom
has the effect of modifying general personal law, but it does not override statutory law, unless the
custom is expressly saved by it. Such custom must be ancient, uniform, certain, continuous and
compulsory. No custom is valid if it is illegal, immoral, unreasonable or opposed to public policy. He
who relies upon custom varying general law, must plead and prove it. Custom must be established
by clear and unambiguous evidence, Laxmibai v. Bhagwantbuva, (2013) 4 SCC 97.
► Applicability of HMG Act, 1956.—When Mother of child, a Christian while father was a
Hindu is not raising any objection to applicability of HMG Act, presumed that said child was
governed by Hindu Law, Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318 : (2015) 4 SCC (Civ)
87.
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 insofar as it is inconsistent with any of the
provisions contained in this Act.
► Applicability.—Section 4 of the Act provides for a non obstante clause in terms of which any
obligation on the part of in-laws of wife, in terms of any text, rule or interpretation of Hindu Law or
any custom or usage as part of law before the commencement of the Act, are no longer valid. In
view of the non obstante clause contained in Section 4, the provisions of the Act alone are
applicable, Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel, (2008) 4 SCC 649.
By virtue of Section 4, any custom or usage as part of the Hindu law in force prior to the
commencement of the Act has ceased to have effect in regard to any matter for which provision has
been made in Chapter II, except what has been expressly provided in the Act, such as, Section 10
(iii) and 10(iv), Daniraiji Vrajlalji v. Vahuji Maharaj Shri Chandraprabha, (1975) 1 SCC 612.
No adoption could be made in the Goda Datta form after coming into force of the Act and hence
there would be no question of its revocation. Section 4 is clearly prospective and not retrospective.
If Section 15 prohibits cancellation of adoption validly made even prior to the commencement of the
Act, then it is manifest that Section 4 finishes the custom of cancellation after the commencement of
the Act, by a prospective operation and not by any retroactive action, Daniraiji Vrajlalji v. Vahuji
Maharaj Shri Chandraprabha, (1975) 1 SCC 612.
Under Dayabhaga School of Law, no right is created in respect of ancestral property on birth
automatically, Ajit Kumar Saha v. Amar Kumar Saha, (2003) 2 ICC 163 (Cal DB).
► Overriding Effect.—After the enforcement of Hindu Adoptions and Maintenance Act, 1956,
there is no room for any customary adoption. After the abolition of the customary law of adoption,
whether of the formal or of the informal kind, there is no room for any argument about the validity of
the adoption provided the formalities prescribed by law are complied with. Ceremony of giving and
taking are sufficient to prove adoption, Kartar Singh v. Surjan Singh, (1974) 2 SCC 559.
After the enactment of the Act, the effect of custom and usage are not totally excluded, although
Section 4 of the Act gives overriding effect and declares that any custom or usage insofar as it is
inconsistent with any of the provisions of the Act shall cease to apply to Hindus. Every plea of
adoption has to be proved by person who relies on such adoption, but where the adoption is
evidenced by a registered document (adoption deed) purporting to record an adoption, the court
shall have to presume that the adoption is made in compliance with the provisions of the Act, Atluri
Brahmanandam v. Anne Sai Bapuji, (2008) 3 AP LJ 7 (SN).
Chapter II
ADOPTION
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5. Adoptions 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 in the family of his or her birth.
► Adoption, Kinds of.—In Section 5(1) of the Act the adoption to be made is mentioned as “by
or to a Hindu”. Thus, adoption is envisaged as being of two kinds. One is adoption by a Hindu, and
the other is adoption to a Hindu. On the face of it, adoption to a Hindu was intended to cover cases
where an adoption is by one person, while the child adopted becomes the adopted son of another
person also. It is only in such a case that it can be said that the adoption has been made to that
other person. The most common instance will naturally be that of adoption by a female Hindu who is
married and whose husband is dead, or has completely and finally renounced the world, or has
been declared by a court of competent jurisdiction to be of unsound mind. In such a case, the
actual adoption would be by the female Hindu, while the adoption will be not only to herself, but also
to her husband who is dead, or has completely and finally renounced the world or has been
declared to be of unsound mind, Sawan Ram v. Kalawanti, AIR 1967 SC 1761.
In the matters of adoption, there is nothing which can be treated to be implied or inherent. The
adoption in the very nature of things is a legal device resulting in the process of affiliation of a
stranger to an otherwise alien family. In contrast to natural birth, it is the juridical recognition of the
status of the person that comes because of the compliance with all the provisions that are necessary
to be so complied laid down by the given system of law. This vital condition may include and take
within it the conditions with regard to the capacity, with regard to the entitlement and disabilities and
with regard to the matters which the law enjoins to be followed before the act can be treated having
the force of valid adoption. Anything lacking or wanting in these matters would lead to the result of
invalidity of such an act, Hiraman Manga Jangale v. Girjabai, 1983 Mah LJ 81.
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.
► Requisites for Valid Adoption.—Adoption when ipso jure void is of no effect. In such a
case even if declaratory relief is barred by limitation that will not clothe the person with rights
resulting from adoption, Hiraman Manga Jangale v. Girjabai, 1983 Mah LJ 81.
For a valid adoption, not only the person adopting should be capable of lawfully taking in
adoption; but the person giving in adoption must be capable of lawfully doing so and the person
adopted must be capable of being lawfully taken in adoption. All the said three conditions must
necessarily be satisfied. Mere satisfaction of any one of them is not sufficient, Salekh Chand v.
Satya Gupta, (2008) 13 SCC 119.
The use of the word “person” in Section 6(iii) and at the commencement of Section 10 is not for
the purpose of bringing about any difference in law in regard to the giving of the child. If the custom
permits a person of the age of 15 years or more to be taken in adoption then even such person
would be the child of the father or mother, Dhanraj v. Surajbai, (1975) 2 SCC 251.
Section 6 does not prohibit the adoption of a lunatic person. Such an adoption cannot be held to
be invalid, Devgonda Raygonda Patil v. Shyamgonda Raygonda Patil, 1991 Mah LJ 1470.
► Requirements of a valid adoption.—The mandatory requirements of a valid adoption are
consent of wife and proof of ceremony of actual giving and taking in adoption. In absence of proof
of these requirements, mere fact of child being brought up by another couple and their names being
entered in child's school/college record as parents would not be sufficient to prove child's adoption
by them, M. Vanaja v. M. Sarla Devi, (2020) 5 SCC 307.
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7. Capacity of a 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 is necessary unless the consent of any one of them is
unnecessary for any of the reasons specified in the preceding proviso.
► Requisites for Valid Adoption.—Consent of wife envisaged in proviso to Section 7 should
either be in writing or reflected by an affirmative/positive act voluntarily and willingly done by her.
Consent cannot be inferred from mere presence, silence, or lack of protest, Ghisalal v. Dhapubai,
(2011) 2 SCC 298.
As per the proviso to Section 7, the wife's consent must be obtained prior to adoption and cannot
be subsequent to the act of adoption. The proviso lays down consent as a condition precedent to an
adoption which is mandatory and adoption without wife's consent would be void. Requirement of
wife's consent for adoption by a male Hindu is a radical change from old Hindu Law which did not
place such a bar on the right to adopt unless he was dispossessed of the requisite capacity,
Brajendra Singh v. State of M.P., (2008) 13 SCC 161.
An adoption cannot be said to be a valid adoption if the first wife refuses to give consent for the
adoption of the second wife's son and participate in the adoption proceedings, Kashibai v.
Parwatibai, (1995) 6 SCC 213.
The proviso to Section 7 dispenses with the consent of wife when she has renounced the world
or has ceased to be a Hindu or has been declared by the Court to be of unsound mind. The consent
cannot be dispensed on ground that the wife was living separately, Bholooram v. Ramlal, AIR 1989
MP 198.
By virtue of the proviso to Section 7, the consent of wife has been made a condition precedent
for adoption by a Hindu male. The mandatory requirement of the wife's consent enables her to
participate in the decision-making process which vitally affects the family. If the wife finds that the
choice of the person to be adopted by the husband is not appropriate or is not in the interest of the
family then she can veto his discretion. By incorporating the requirement of wife's consent in the
proviso to Section 7 and by conferring independent right upon a female Hindu to adopt a child,
Parliament has tried to achieve one of the facets of the goal of equality enshrined in the Preamble
and reflected in Article 14 read with Article 15 of the Constitution, Ghisalal v. Dhapubai, (2011) 2
SCC 298.
6
[8. Capacity of a female Hindu to take in adoption.—Any female Hindu who is of
sound mind and is not a minor has the capacity to take a son or daughter in adoption:
Provided that, if she has a husband living, she shall not adopt a son or daughter
except with the consent of her husband unless the husband 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.]
► Widow's right to adopt.—The conscious and positive as well as deliberate omission to
provide for a female Hindu seeking or obtaining any such consent from a co-widow or junior widow
is a definite pointer to indicate that the legislative intent and determination was not to impose any
such clog on the power specifically conferred upon the female Hindu, may be for the obvious
reason that under the scheme of the Act the Hindu female has been enabled and empowered to
adopt not only to herself but also to her husband, and also in tune with the changed and modern
concept of equality of women and their capabilities to decide independently statutorily recognized,
and the very reason for insisting upon such an authority or consent from the husband or the
sapindas under the old Hindu law having lost its basis and thereby ceased to be of any relevance or
valid purpose whatsoever, Vijayalakshmamma v. B.T. Shankar, (2001) 4 SCC 558.
Where a Hindu male dies leaving behind a widow and a son and the son dies subsequently, the
responsibility for continuance of the family line falls on the widow by the power of adoption vesting in
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her. If, however, her deceased son had left behind a son or his own widow, the power of adoption of
the former widow is extinguished permanently. When the deceased son has no son but a widow
then the power of the widow mother of the deceased son had extinguished permanently. That power
will not revive even on remarriage of her son's widow, Sau Ashabai Kate v. Vithal Bhika Nade, 1989
Supp (2) SCC 450.
When there is express authority by the husband or when the consent of the sapindas has been
properly obtained the motive of the widow is irrelevant. Courts are bound to presume that the act
was done by the widow in the proper and bona fide performance of religious duties and neither
capriciously nor from a corrupt motive. Ordinarily, it would also be presumed that the motive of the
widow in making an adoption is for the performance of religious duties. Consequently the motive of
the widow in making an adoption is irrelevant for the purpose of validating it and the refusal of the
consent by the sapindas on the ground that the motive of the widow is improper would amount to
improperly withholding the consent, G. Appaswami Chettiar v. R. Sarangapani Chettiar, (1978) 3
SCC 55.
► Adoption Rights.—Only a female Hindu who is married and whose marriage has been
dissolved i.e., who is a divorcee, has the capacity to adopt. There is a conceptual and contextual
difference between a divorced woman and one who is leading life like a divorced woman. A woman
during subsistence of her marriage, although staying separately from her husband for a very long
period and living a life like a divorced woman is devoid of the capacity to make an adoption,
Brajendra Singh v. State of M.P., (2008) 13 SCC 161.
Section 8(c) of the Act has brought about a very important and far-reaching change in the law of
adoption as used to apply earlier in case of Hindus. It is now permissible for a female Hindu who
fulfills the conditions stated in Section 8 to take a son or daughter in adoption to herself in her own
right. It follows from Section 8(c) that a Hindu wife who does not meet the capacity requirement
therein specified cannot adopt a son or daughter to herself even with the consent of her husband
because the section expressly provides for cases in which she can adopt a son or daughter to
herself during the lifetime of the husband. She can only make an adoption in the cases so indicated
in Section 8(c), Brajendra Singh v. State of M.P., (2008) 13 SCC 161.
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.
7 [(2) Subject to the provisions of sub-section (4), the father or the mother, if alive,
shall have equal right to give a son or daughter in adoption:

Provided that such right shall not be exercised by either of them save with the
consent of the other unless one of them 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) 8 [* * *]
9 [(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 to 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 expressions “father” and “mother” do not include an adoptive father and
an adoptive mother, 10 [** *]
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11
[(i-a) “guardian” means a person having the care of the person of a child or of
both his person and property and includes—
(a) a guardian appointed by will of the child's father or mother; and
(b) a guardian appointed or declared by a court; and]
(ii) “court” means the city or civil court or a district court within the local limits
on whose jurisdiction the child to be adopted ordinarily resides.
► Applicability.—An application under Section 9(4) of the Hindu Adoption and Maintenance Act
is no part of proceedings under Guardian and Wards Act. An application for permission to give
consent in adoption should be filed by the Court-guardian before the District Judge or the City Civil
Court, as the case may be by way of independent proceedings under Section 9 of the Hindu
Adoption and Maintenance Act, Darshan Singh v. Harbans Kaur, (2003) 1 AIC 602 : (2002) 2 Cal
LT 440.
► Interpretation.—The restrictive meaning attributed to the word “guardian” to include only the
natural guardian and not the certificate guardian, would render the provision negatory and otiose,
Sankar Sudha Pal, In re, (2012) 1 CHN 416 (Cal).
A perusal of Section 9 especially Sections 9(1), 9(2), 9(3) makes it clear that the term “mother”
means the natural mother and not the stepmother. The adoptive mother is excluded from the
expression mother and is not competent to give the adopted son in adoption to somebody else,
Dhanraj v. Suraj Bai, (1975) 2 SCC 251.
► Welfare of Child.—The certificate guardian is competent to maintain an application under
Section 9 of the Act seeking permission for adoption of an abandoned child or a child whose
parentage is unknown to adopt the said child to himself. The permission can only be granted by the
Court upon reasonable satisfaction about the welfare of the child as envisaged under Section 9(5) of
the said Act, Sankar Sudha Pal, In re, (2012) 1 CHN 416 (Cal).
► Requisites for Adoption.—If the child is a minor, in absence of the father or the mother, a
guardian appointed by the will of the child's father or mother and a guardian appointed or declared
by a court, would be competent to give the child in adoption. But in case of a major in absence of
the father or the mother, nobody is competent to give him in adoption because no such provision
has been made in the Act to meet such a contingency. The scheme of the Act is not to make a child
of 15 years of age or above fit to be taken in adoption. Exception has been made in favour of a
custom to the contrary. Unless custom permits, an orphan who is not minor cannot go in adoption
by his own consent without the consent of and the giving by anybody else, Dhanraj v. Suraj Bai,
(1975) 2 SCC 251.
Even after the divorce of the husband and wife, the husband remains the father of the child.
Therefore under Section 9(2) of the Act, he along has the right with the consent of the mother to
give the child in adoption subject to the provisions of Section 9(3) and 9(4) of the Act, Chandra Nath
Sadhu v. State of W.B., (2003) 4 ICC 74 (Cal).
► Adoption Rights.—From a harmonious reading of Section 9(1), 9(2), 9(3) of the Act, it is
clear that when a natural father is not dead or has not completely and finally renounced the world or
has not ceased to be a Hindu or has not been declared by a Court of competent jurisdiction to be of
unsound mind then the natural mother cannot exercise the right and capacity to give the child in
adoption, Chandra Nath Sadhu v. State of West Bengal, (2003) 3 Cal LT 1 : (2003) 4 ICC 74.
► Foster Care Home.—A foster Care Home can be considered to be a guardian under Section
9 of the Act and can give a minor child in adoption with the permission of the Court, St. Thomas
Mount Babies Home, Holy Apostles Convent, rep. by its Secretary, St. Barbara, St. Thomas
Mount, Madras-16, (2006) 3 CTC 12 : (2006) 2 LW 808.
10. Persons who may be adopted.—No person shall be capable of being taken in
adoption unless the following conditions are fulfilled, namely—
(i) he or she is a Hindu;
(ii) he or she has not already been adopted;
(iii) he or she has not been married, unless there is a custom or usage applicable
to the parties which permits persons who are married being taken in adoption;
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(iv) he or she has not completed the age of fifteen years, unless there is a
custom or usage applicable to the parties which permits persons who have
completed the age of fifteen years being taken in adoption.
► Proof, Presumption, Registration/Validity of Adoption.—The adoption of a female child
was not permissible prior to the passing of the Act and any amount of documentary or oral evidence
regarding the same is unacceptable especially when the custom of adopting female children is not
proved, Lalitha v. Parameswari, AIR 2001 Mad 363.
There is no prohibition for adoption of an illegitimate child in the Act, Bommana Veera Raju v.
Neelu Dattatrayulu, (1990) 1 AP LJ 51 (SN).
Prohibition of adoption on principle of “Virudha Sambandha” was applicable only before the
enforcement of Act. After the enforcement of the Act, conditions for valid adoption are contained in
Section 10. Section 4 of the Act gives overriding effect over customs and usages prevailing earlier
to enforcement of the Act, Jogendra Majhi v. Jahaja Baliar Singh, (2007) 58 AIC 691 (Ori).
The words “custom” or “usage” occurring in Section 10(iii) and Section 10(iv) of the Hindu
Adoptions and Maintenance Act, 1956, read along with Section 3(a) of the said Act includes within
its sweep the rules of the Bombay School of Hindu law (Mayukha). Even on the coming into force of
Hindu Adoptions and Maintenance Act a widow can take a boy over 15 years of age in adoption as
also a married person under Mayukha School of Law, Anirudh Jagdeorao v. Babarao Irbaji, 1983
Mah LJ 379 : AIR 1983 Bom 391.
► Welfare of Child.—The welfare of the child is of prime importance in the cases relating to
adoption or custody. the balanced development of a child, emotional, physical, and intellectual, can
be best ensured within the family, or where this is not possible, then in familial surrogating. Hence,
priority must be given to the child's welfare instead of the desires or pleadings of either party to the
case, Maroti Vitthal Bhatwalkar v. Mahila Vikas Mandal, Chandrapur, 2 Mah LJ 33 : 2007 Supp
Bom CR 714.
► Children in Conflict with law.—In case of conflict with the provisions of the Juvenile Justice
(Care and Protection of Children) Act, 2000, if the child sought to be adopted falls within the
description of an orphaned, abandoned or surrendered child within the meaning of Section 41(2) or
a child in need of care and protection under Section 2(d), the embargo that is imposed on adopting
a child of the same sex by a Hindu under Section 11(i) and 11(ii) of the Hindu Adoptions and
Maintenance Act, 1956 must give way to the statutory provisions made by the Juvenile Justice Act.
Where, however, the child is not of a description falling under the purview of Chapter IV of the
Juvenile Justice Act, 2000, a Hindu desirous of adopting a child continues to be under the embargo
imposed by Section 11(i) and 11(ii) of the Act of 1956, Payal v. Indian Adoption, (2010) 1 Bom CR
434.
11. Other conditions for a valid adoption.—In every adoption, the following
conditions must be complied with:
(i) if any adoption is of a son, the adoptive father or mother by whom the
adoption is made must not have a Hindu son, son's son or son's son's son
(whether by legitimate blood relationship or by adoption) living at the time of
adoption;
(ii) if the adoption is of a daughter the adoptive father or mother by whom the
adoption is made must not have a Hindu daughter or son's daughter (whether
by legitimate blood relationship or by adoption) living at the time of adoption;
(iii) if the adoption is by a male and the person to be adopted is a female, the
adoptive father is at least twenty-one years older than the person to be
adopted;
(iv) if the adoption is by a female and the person to be adopted is a male, the
adoptive mother is at least twenty-one years older than the person to be
adopted;
(v) the same child may not be adopted simultaneously by two or more persons;
(vi) the child to be adopted must be actually given and taken in adoption by the
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parents or guardian concerned or under their authority with intent to transfer
the child from the family of its birth 12 [or in the case of an abandoned child or
a child whose parentage is not known, from the place or family where it has
been brought up] to the family of its adoption:
Provided that the performance of datta homan, shall not be essential to the validity
of an adoption.
► Requisites for Valid Adoption.—The words in Section 11 (vi) of the Act “with intent to
transfer the child from the family of its birth to the family of its adoption” are merely indicative of the
result of actual giving and taking by the parents and guardians concerned. Where an adoption
ceremony is gone through and the giving and taking takes place there cannot be any other intention.
The very ceremony of giving and taking is in itself symbolic of transplanting the adopted son from
the family of his birth to the adoptive family, Kartar Singh v. Surjan Singh, (1974) 2 SCC 559.
For a valid adoption, the physical act of giving and taking is an essential requisite, a ceremony
imperative in all adoptions whatever the caste. This requisite is satisfied in its essence only by the
actual delivery and acceptance of the boy, even though there exists an expression of consent or an
executed deed of adoption, Senthilkumar v. Dhandapani, (2004) 22 AIC 626 (Mad).
The give and take in adoption is a requirement under Section 11(vi) and stands as a sine qua
non for a valid adoption, Jai Singh v. Shakuntala, (2002) 3 SCC 634.
An adoption is valid if the factum of adoption is proved, Kondiba Rama Papal v. Narayan
Kondiba Papal, (1991) 2 SCC 218.
As an adoption results in changing the course of succession, depriving wives and daughters of
their rights and transferring properties to comparative strangers or more remote relations it is
necessary that the evidence to support it should be such that it is free from all suspicions of fraud
and so consistent and probable as to leave no occasion for doubting its truth, Kishori Lal v.
Chaltibai, 1959 Supp (1) SCR 698 : AIR 1959 SC 504.
Under the Hindu law, whether among the regenerate caste or among Sudras, there cannot be a
valid adoption unless the adoptive boy is transferred from one family to another and that can be
done only by the ceremony of giving and taking. The object of the corporeal giving and receiving in
adoption is obviously to secure due publicity. To achieve this object it is essential to have a formal
ceremony. No particular form is prescribed for the ceremony, but the law requires that the natural
parent shall hand over the adoptive boy and the adoptive parent shall receive him. The nature of the
ceremony may vary depending upon the circumstances of each case. But a ceremony there shall
be, and giving and taking shall be part of it, Lakshman Singh Kothari v. Rup Kanwar, (1962) 1 SCR
477 : AIR 1961 SC 1378.
For a valid adoption, the ceremony of giving and taking is an essential requisite in all adoptions,
whatever the caste. This requisite is satisfied in its essence only by the actual delivery and
acceptance of the boy, even though there exists an expression of consent or an executed deed of
adoption. In some cases, to complete the adoption a “datta homam” has been considered
necessary, but in the case of the twice-born classes, no such ceremony is needed if the adopted
boy belongs to the same gotra as the adoptive father, Madhusudan Das v. Narayanibai, (1983) 1
SCC 35.
The motive for adoption is not relevant for considering whether it is a valid adoption or not,
Devgonda Raygonda Patil v. Shyamgonda Raygonda Patil, 1991 Mah LJ 1470.
Even when the adoptive parents are qualified and entitled to adopt the child and the natural
parents are also entitled to give the child in adoption, it is necessary that the conditions for a valid
adoption as laid down under Section 11 of the Act are to be satisfied. It is not compulsory to register
the adoption deed if reduced to writing. But if the adoption deed is registered the presumption is that
the adoption has been made in compliance with the provisions of the Act unless it is disproved,
Gajula Ratnaji v. Boppana Veera Prabhavathi, (2006) 3 AP LJ 68 (SN).
For a valid adoption the performance of Datta Homam and registration of adoption deed are not
mandatory. Physical act of giving and taking is an essential requisite, a ceremony imperative
regardless of the caste. This requisite is satisfied in its essence only by the actual delivery and
acceptance of the boy even though there exists an expression of consent or an executed deed of
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adoption, B. Ravindranath v. C. Venkata Lakshmi, (2003) 1 AP LJ 25 (SN).
The giving and receiving are absolutely necessary to the validity of an adoption; they are the
operative part of the ceremony, being that part of it which transfers the boy from one family to
another; but the Hindu Law does not require that there shall be any particular form so far as giving
and acceptance are concerned; for a valid adoption all that the law requires is that the natural father
shall be asked by the adoptive parent to give his son in adoption, and that the boy shall be handed
over and taken for this purpose, L. Debi Prasad v. Tribeni Devi, (1970) 1 SCC 677.
A valid adoption can only take place when the capacity and the right of the adopter exist and in
the absence of the either, the adoption will be invalid. Under the present law as opposed to the old
Hindu law, a daughter can also be adopted, Asoka Mukherjee v. Gandhi Das, (2003) 2 ICC 108
(Cal).
Adoption as such is a legal device by which a stranger can be admitted to the membership and
privileges of a child in the adoptive family. It is a recognised form of personal affiliation. Being a
legal device for being effective, all the conditions of such a device must be shown to have been fully
complied with before the adoptive status is asserted or recognised. It is, therefore, obvious that once
the condition under Section 11(iv) of the Act with regard to the difference of age between the
adoptive mother and the adopted person is shown to be wanting, the adoption must fail and so also
the claim for status, Hiraman Manga Jangale v. Girjabai, 1983 Mah LJ 81.
Section 11 of the Hindu Adoptions and Maintenance Act, 1956, at the very inception speaks of
the conditions set out being mandatorily required to be complied with. No other meaning can be
assigned to the words “must be complied with” occurring in the said section. One of the conditions
for a valid adoption is the difference in ages prescribed by Section 11(iv). This is not a merely
directory provision but something which is mandatory and the violation whereof results in the
invalidity of the adoption, Ramchandra Balu Magadum v. Rakhamabai Balu Magadum, (1992) 1
Mah LJ 165.
► Restrictions on Adoption.—Restriction created by Section 11(i) and (ii) of the Act
injuncting a person from having second son or daughter by adoption is not unjust or unfair,
Sandhya v. Union of India, (1998) 1 Mah LJ 740.
► Validity of custom.—Even under the old Hindu law, adoption during the lifetime of a male
issue was specifically prohibited. Such an adoption even if made would be contrary to the concept
of adoption and the purpose thereof, and unreasonable. Such a custom cannot be said to be a valid
custom, Salekh Chand v. Satya Gupta, (2008) 13 SCC 119.
► Proof, Presumption, Registration/Validity of Adoption.—Merely having joint bank account
with alleged adoptive parent is not a proof of adoption, in the absence of other cogent evidence,
Nilima Mukherjee v. Kanta Bhusan Ghosh, (2001) 6 SCC 660.
Factum of adoption and its validity has to be duly proved. Though formal ceremony of giving and
taking is essential ingredient for valid adoption, long duration of time during which a person is
treated as adopted cannot be ignored. Such fact by itself may carry a presumption in favour of
adoption, Kamla Rani v. Ram Lalit Rai, (2018) 9 SCC 663.
In the case of all ancient transactions, it is but natural that positive oral evidence will be lacking.
Human affairs often have to be judged on the basis of probabilities. Rendering of justice will become
impossible if a particular mode of proof is insisted upon under all circumstances. In judging whether
an adoption pleaded has been satisfactorily proved or not, the lapse of time between the date of the
alleged adoption and the date on which the concerned party is required to adduce proof has to be
kept in mind. In the case of an adoption said to have taken place years before the same is
questioned, the most important evidence is likely to be that the alleged adoptive father held out the
person claiming to have been adopted as his son; the latter treated the former as his father and their
relations and friends treated them as father and son, L. Debi Prasad v. Tribeni Devi, (1970) 1 SCC
677.
A person who seeks to displace the natural succession to property by alleging an adoption must
discharge the burden that lies upon him by proof of the factum of adoption and its validity, A.
Raghavamma v. A. Chenchamma, (1964) 2 SCR 933 : AIR 1964 SC 136.
Adoption disturbs the natural line of succession, owing to which, a very heavy burden is placed
upon the propounder to prove the adoption. However, this onus shifts to the person who challenges
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the adoption, once a registered document recording the adoption is brought before the court. This
aspect must be considered taking note of various other attending circumstances i.e., evidence
regarding the religious ceremony (giving and taking of the child), as the same is a sine qua non for
valid adoption, Laxmibai v. Bhagwantbuva, (2013) 4 SCC 97.
12. Effect of adoptions.—An adopted child shall be deemed to be the child of his 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 severed and 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 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.
► Applicability.—Adoption after vesting of undivided shares of other heirs in the said other
heirs, held, has no effect on such vested undivided shares, Saheb Reddy v. Sharanappa, (2017) 1
SCC 142 : (2017) 1 SCC (Civ) 338.
► Effect of Adoption.—Section 12 of the Act provides that the adoption of the adoptive son to
the father or mother gets effect only from the date of adoption and not retrospectively. As per
Section 12(c) of the Act, if any estate or property is divested to any other person before the
adoption then the adopted son is not entitled to get back to the said property, Kisan Baburao
Memane v. Suresh Sadu Memane, (1996) 1 Mah LJ 100.
Section 12 clearly affirms that any property that might have been vested in the adoptee before
the adoption, continues to remain vested in the adoptee subject to any obligations, if any, attaching
to the ownership of such property, including the obligation of the adoptee to maintain relatives in the
family of his or her birth. The section recognises the right of a coparcener in a coparcenary
property by birth. It is immaterial whether vesting took place prior to coming into force of the Hindu
Adoptions and Maintenance Act, 1956, and irrespective of the fact whether he has been adopted
prior to the coming into force of the said 1956 Act, Jadabendra Narayan Choudhury v. Shitanshu
Kumar Choudhury, (2013) 2 CHN 325 (Cal).
According to Section 12 of the Act an adopted child severs all his/her connections with the
natural family as soon as a valid adoption is made, and, he/she must be treated as a Class I heir of
a deceased male Hindu and, therefore, must be treated at par with the natural heir and legal
representative of a deceased who had adopted him, Sarat Chandra Das v. Revenue Officer, (1994)
1 Cal LT 395 : (1994) 1 Cal LJ 212.
When a widow adopts a child, the child not merely acquires an adoptive mother but also
acquires other relationships in the adoptive family, unless there is anything to the contrary in the
Hindu Adoptions and Maintenance Act, Chandan Bilasini v. Aftabuddin Khan, (1996) 7 SCC 13.
On adoption, the adoptee gets transplanted in the family in which he is adopted with the same
rights as that of a natural-born son. The legal effect of giving a child in adoption is to transfer the
child from the family of his birth to the family of his adoption. He severs all his ties with the family
from which he is taken in adoption. Correspondingly, these ties are automatically replaced by those
created by adoption in the adopted family. The adopted child becomes a coparcener in the joint
Hindu family property, Basavarajappa v. Gurubasamma, (2005) 12 SCC 290.
The true effect and interpretation of Sections 11 and 12 of the Act is that when either of the
spouses adopts a child, all the ties of the child in the family of his or her birth become completely
severed and these are all replaced by those created by the adoption in the adoptive family. In other
words the result of adoption by either spouse is that the adoptive child becomes the child of both the
spouses, Sitabai v. Ramchandra, (1969) 2 SCC 544.
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Once a person is adopted, he cannot not have a right in the coparcenary property of the family
of his natural birth, Devgonda Raygonda Patil v. Shyamgonda Raygonda Patil, 1991 Mah LJ 1470.
Proviso (c) of Section 12 departs from the Hindu general law and makes it clear that the adopted
child shall not divest any person of any estate which has vested in him or her before the adoption.
Merely by adopting a child, a widow is not deprived of any of her rights in the property. The adopted
child could get the rights for which he is entitled after her death, Dinaji v. Daddi, (1990) 1 SCC 1.
The rights of the adopted son relate back to the date of the adoptive father's death and the
adopted son must be deemed by a fiction of law to have been in existence as the son of the adoptive
father at the time of the latter's death. If, therefore, there was a coparcenary in existence when the
adoptive father died, then whether it came to an end by the death of the last surviving coparcener or
by subsequent partition among the remaining members, an adoption validly made by the widow of
the deceased coparcener would have the effect of divesting the estate in the hands of the heir to the
last surviving coparcener in the first case and of putting an end to the partition in the second case
and enabling the adopted son to claim a share in the family properties as if they were still joint, Mudi
Gowda Gowdappa Sankh v. Ram Chandra Ravagowda Sankh, (1969) 1 SCC 386.
An adopted son is deemed to have been adopted on the date of the death of his adoptive father.
He is the continuation of his adoptive father's line exactly as an aurasa son and an adoption, so far
as the continuity of the line is concerned, has a retrospective effect. Whenever the adoption may be
made there is no hiatus in the continuity of the line, Govind Hanumantha Rao Desai v. Nagappa,
(1972) 1 SCC 515.
An adoption of a son does not deprive the adoptive mother of the power to dispose of her
separate property by transfer or by Will. Adoption does not divest the adoptive mother of the suit
property which vested in her by succession on the death of her husband. Mere adoption does not
deprive her of her right to dispose of her own disposable property, Ugre Gowda v. Nagegowda,
(2004) 12 SCC 48.
From a perusal of Section 12(b) of the Act, it is evident that if any property had vested in the
child before adoption, the adoption would not have any effect upon it. A coparcener gets his right to
a share in the joint family property, by virtue of his birth, Ratakonda Kanthamma v. District
Registrar, Chittoor, (2007) 4 ALD 13 : (2007) 58 AIC 289.
If the child taken in adoption is born after the death of the husband of the widow, the adopted son
cannot claim that by virtue of legal fiction that he takes the interest of the deceased father from the
year of his death. He can claim succession to the adoptive mother but not as coparcener on the
basis of legal fiction, Rajendra Kumar v. Kalyan, (2000) 8 SCC 99.
The exception carved out by clause (c) of the proviso to Section 12 of the Adoption Act is meant
only to protect the others of rights vested in them prior to the adoption and is not intended to deprive
the adopted child of the rights with regard to the property belonging to the joint family, wherein such
child would have got interest by birth, the date of his birth only being fixed fictionally to the date of
the adoption, Hirabai v. Babu Manika Ingale, 1980 Mah LJ 494 : AIR 1980 Bom 315.
The fiction that an adoption relates back to the date of the death of the adoptive-father applies
only when the claim of the adoptive son relates to the estate of the adoptive father. But where the
succession to the property of a person other than the adoptive father is involved, the principle
applicable is not the rule of relation back but the rule that inheritance once vested cannot be
divested. The rights of an adopted son cannot be more than that of his adoptive father, Govind
Hanumantha Rao Desai v. Nagappa, (1972) 1 SCC 515.
Once joint family properties are partitioned validly, the share of a member of a Mitakshara Hindu
family in which his own issue have no right by birth can be transferred by his will and such transfers
be then by will, gift or sale, bind the adopted son who comes later on the scene. If a property has
validly gone out of the hotch-potch the adopted son cannot recall it. Partition cannot be drowned by
the subsequent adoption because when it was entered into there was no legal impediment in doing
it. The clock cannot be put back beyond a certain stage, Shripad Gajanan Suthankar v. D.K.
Suthankar, (1974) 2 SCC 156.
An exception to the rule that adoption severs a son from his natural family exists in the case of
what is called a dwyamushyayana or son of two fathers. The only form of dwyamushyayana
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adoption that is not obsolete is the nitya or absolute dwyamushyayana in which a son is taken in
adoption under an agreement that he should be the son of both the natural and adoptive fathers. It
appears to be obsolete in Madras on the East Coast. But in the West Coast among the Nambudri
Brahamana, it is the ordinary form. In Bombay and the United Provinces its existence is fully
recognised, M. Ct. Muthiah v. Controller of Estate Duty, 1986 Supp SCC 375.
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.
► Disposition of Property.—The right of adoptive parents to dispose of their immovable
property by transfer inter vivos or by will may be restricted only by a specific registered agreement
expressly stating that such powers have been restricted, Chiranjilal Srilal Goenka v. Jasjit Singh,
(2001) 1 SCC 486.
Section 13 applies only where the property after adoption remains capable of being disposed of
by the adoptive father as his property. Section 13 does not detract from the rule that a gift of
coparcener's property by a member is void, Mukund Singh v. Wazir Singh, (1972) 4 SCC 178.
Section 13 of the Act does not deal with the property wherein by reason of birth an interest is
created, but deals with the property belonging to the adoptive father or mother. It preserves,
notwithstanding the adoption, the right of the adoptive father or mother to dispose of his or her
property by transfer inter vivos or by will. The provision was enacted so as to clarify that adoption
would not have the negative effect on the right of ownership with regard to the property belonging to
the adoptive father or mother, Hirabai v. Babu Manika Ingale, 1980 Mah LJ 494 : AIR 1980 Bom
315.
Section 13 enacts that when the parties intend to limit the operation of proviso (c) to Section 12,
it is open to them by an agreement, Dina Ji v. Daddi, (1990) 1 SCC 1.
An adopted son can divest property of his adoptive father from the hands of the adoptive mother
if only she is holding it as limited owner but not when she is holding under an absolute title, D.
Lakshmana Rao v. D. Lakshmikanthamma, (1972) 2 AP LJ 38 (SN).
14. Determination of adoptive mother in certain cases.—(1) Where a 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
seniormost in marriage among them shall be deemed to be the adoptive mother and
the others to be stepmothers.
(3) Where a widower or a bachelor adopts a child, any wife whom he subsequently
marries shall be deemed to be the stepmother 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 stepfather of the adopted child.
► Status of Adoptive parents.—Where a widow or an unmarried woman adopts a child, any
person whom she marries subsequently shall be deemed to be the step-father of the adopted child.
In other words, the family relationship gets crystallised as to the date of adoption. The child will be
deemed to be the child of the parent who adopts the child and the existing or deceased spouse of
that parent (as the case may be), if any, will be considered the child's father or mother. A spouse
subsequently acquired by the adoptive parent becomes the step-parent of the adopted child,
Chandan Bilasini v. Aftabuddin Khan, (1996) 7 SCC 13.
It is a necessary implication of Sections 12 and 14 of the Act that a son adopted by the widow
becomes a son not only of the widow but also of the deceased husband and hence is also a
coparcener in the joint family properties, Sitabai v. Ramchandra, (1969) 2 SCC 544.
An adoption by the husband results in the adoption of the child by both these spouses; the child
is not only the child of the adoptive father but also of the adoptive mother. In case of there being two
wives, the child becomes the adoptive child of the senior most wife in marriage, the junior wife
becoming the stepmother of the adopted child. Even when a widower or a bachelor adopts a child,
and he gets married subsequent to the adoption, his wife becomes the stepmother of the adopted
child, Sitabai v. Ramchandra, (1969) 2 SCC 544.
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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 the
adopted child renounce his or her status as such and return to the family of his or her
birth.
► Restriction on Cancellation of Valid Adoption.—Once the adoption takes effect, the
adoptive child shall be deemed to be the child of the adoptive parents. Once the adoption is validly
made such adoption cannot be cancelled by the adoptive father or mother or any person under
Section 15 of the Act, Gajula Ratnaji v. Boppana Veera Prabhavathi, (2006) 3 AP LJ 68 (SN).
Section 15 applies to an adoption which has been validly made in accordance with the provisions
contained in Chapter II of the Act and after its commencement. It does not do away with the incident
and characteristic of revocability of the custom of Goda Datta, Daniraiji Vrajlalji v. Vahuji Maharaj
Shri Chandraprabha, (1975) 1 SCC 612.
Even if Section 15 of the Act which prohibits cancellation of adoption once validly made were to
apply to an adoption made prior to coming into force of the Act, it would not affect that adoption, its
validity or effect. Instead of affecting the adoption Section 15 would not permit it to be affected,
Daniraiji Vrajlalji v. Vahuji Maharaj Shri Chandraprabha, (1975) 1 SCC 612.
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.
STATE AMENDMENT
UTTAR PRADESH.—In the Hindu Adoption and Maintenance Act, 1956, Section 16
shall be renumbered as sub-section (1) thereof, and after sub-section (1) as so
renumbered, the following sub-section shall be inserted, namely:
“(2) In case of an adoption made on or after the first day of January, 1977 no
court in Uttar Pradesh shall accept any evidence in proof of the giving and taking of
the child in adoption, except a document recording an adoption, made and signed
by the person giving and the person taking the child in adoption, and registered
under any law for the time being in force:
Provided that secondary evidence of such document shall be admissible in the
circumstances and the manner laid down in the Indian Evidence Act, 1872 (Act 1 of
1872).”—Vide U.P. Act 57 of 1976, S. 35 w.e.f. 1-1-1977.
► Proof, Presumption, Registration/Validity of Adoption.—Section 16 envisages a statutory
presumption that in the event of there being a registered document pertaining to adoption there
would be a presumption that adoption has been made in accordance with law. Mandate of the statute
is rather definite since the legislature has used “shall” instead of any other word of lesser
significance. However, the inclusion of the words “unless and until it is disproved” appearing at the
end of the statutory provision has made the situation not that rigid but flexible enough to depend
upon the evidence available on record in support of adoption, Jai Singh v. Shakuntala, (2002) 3
SCC 634.
The validity of the presumption under Section 16 as to registered documents relating to adoption
is rebuttable on the basis of evidence adduced before the Court, Lal Man v. Dy. Director of
Consolidation, (1998) 8 SCC 693.
Where the adoption deed is not signed by the person giving the child in adoption and there is no
indication of registration of the deed of adoption, no presumption under Section 16 relating to the
validity of the adoption can be drawn, Bihar Rajya Vidyut Board v. Chhathu Ram, (1999) 5 SCC
673.
When the natural father signed the document as an attestor to the factum of adoption made by
the adoptive mother, it is a sufficient compliance of evidence of the fact that the father has given his
natural son in adoption to his adoptive mother, Veer Setty v. P. Anjaiah, (1988) 1 AP LJ 75 (SN).
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Court had no jurisdiction to question the validity and legality of an adoption deed which was
registered. It is however open to the concerned party to disapprove such deed of adoption in an
independent proceedings, Ashwani Kumar v. Vidya, (2007) 66 ALR 762 (All).
As under Section 16 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
persons mentioned therein, the court shall presume that the adoption has been made in compliance
with the provisions of the said Act unless and until it is disproved, Deu v. Laxmi Narayan, (1998) 8
SCC 701.
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 the receipt 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 authorised by the State Government in
this behalf.
► Nature, Scope and Object.—The object of Section 17 is to prevent trafficking of children,
Jupudi Venkata Vijaya Bhaskar v. Jupudi Kesava Rao, (2003) 8 SCC 282.
Section 17 was enacted to prevent trafficking of children is not intended to cover cases where a
major person agrees not to set up any claim with regard to certain items belonging to the adoptive
family. Section 17 cannot be held to have an overriding effect so as to change the legal proposition
prevalent prior to the commencement of the Act. It does not prohibit every kind of agreement
between a major adoptee and the would-be adoptive father, Jupudi Venkata Vijaya Bhaskar v.
Jupudi Kesava Rao, (2003) 8 SCC 282.
Chapter III
MAINTENANCE
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 lifetime.
(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 of wilfully
neglecting her;
(b) if he has treated her with such cruelty as to cause a reasonable apprehension
in her mind that it will be harmful or injurious to live with her husband;
(c) 13 [* * *]
(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 her 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.
► Interpretation.—The words “Hindu wife” used in Section 18 includes only lawful wife or
legally wedded wife if does not include wife married during subsistence of first marriage, Megh
Prasad v. Bhagwantin Bai, (2009) 80 AIC 688 (Chhatt).
The word “Hindu wife” in Section 18(1) connotes only a legally wedded wife of a Hindu and such
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wife alone is entitled to claim maintenance from her husband under this section. If her marriage is
void ab initio, she is not entitled to claim maintenance under this section. “Hindu wife” in this Section
means only a wife whose marriage is valid under the provisions of the Hindu Marriage Act, 1955.
The wife whose marriage has been solemnized, but is void on the ground that the first wife of the
husband is living at the time of the marriage, is not entitled to claim maintenance under this
provision, Abbayolla M. Subba Reddy v. Padmamma, AIR 1999 AP 19 : (1999) 1 ICC 753.
Word “wife” in Section 18 of this Act includes divorced wife, Vihalal Mangaldas Patel v. Maiben
Vihalal Patel, AIR 1995 Guj 88.
The concept of matrimonial cruelty no more confines to the physical violence. It is not necessary
to prove the ground of cruelty by showing the endangering of life, limb or health through physical or
personal violence. The view which has been holding the field for several decades that cruelty occurs
when there is bodily harm and injuries is no more valid in the modern times as “cruelty” has widened
its net to mental cruelty also. Any conduct which causes such mental pain and suffering as would
make it impossible for the aggrieved party to live with the guilty party comes within the ambit of
mental cruelty, Anubha v. Vikas Aggarwal, (2003) 3 AIC 384 (Del) : AIR 2003 Del 175.
Chaste life in context of marital life means a life which is sexually virtuous. The sexual relations of
a wife with one of the opposite sex other than the husband fall within the vice of “unchaste life”
However, in modern times, the conduct of women of talking to strangers or mixing with friends,
relatives of the husband cannot be concluded to be that of living an unchaste life and the husband
cannot deny maintenance to the wife on such grounds, Anubha v. Vikas Aggarwal, (2003) 3 AIC
384 (Del) : AIR 2003 Del 175.
Maintenance of Wife
According to Section 18(1) of the Act, a Hindu wife is entitled to the maintenance from her
husband during her lifetime. She is entitled to claim maintenance from her husband so long as she
is chaste subject to the conditions laid down in Section 18(2) of the said Act. Such an obligation of
the husband to maintain his wife arises irrespective of the fact whether he has or has no property,
as it is considered an imperative duty and a solemn obligation of the husband to maintain his wife.
The plea of the husband that he is unable to maintain due to financial constraints cannot be
accepted so long as he is capable of earning, Kirtikant D. Vadodaria v. State of Gujarat, (1996) 4
SCC 479.
If the wife has no source of income it is the obligation of the husband to maintain her and also
the children of the marriage on the basis of the provisions contained in the Hindu Adoptions and
Maintenance Act, 1956. Her right to claim maintenance fructifies on the date of the filing of the
petition for divorce under the Hindu Marriage Act, 1955, Jasbir Kaur Sehgal v. Distt. Judge,
Dehradun, (1997) 7 SCC 7.
A divorced wife cannot claim any maintenance under Hindu Adoptions and Maintenance Act,
1956 since the precondition for application of Hindu Adoptions and Maintenance Act, 1956, for a
wife to seek maintenance is that the marriage must be subsisting, Panditrao Chimaji Kalure v.
Gayabal, AIR 2001 Bom 445.
The right of a Hindu wife to claim maintenance is an incident of the status of matrimony and if
the relationship of husband and wife is proved, the wife is entitled to claim maintenance in law as
long as her husband is alive, she is not a dependent as per Section 21. If the marriage of Hindu
woman is solemnised with a Hindu husband as per the Hindu Marriage Act and is not dissolved by a
divorce decree or a void one, then, she is ‘a Hindu Wife’ coming within the meaning of Section 18
of Hindu Adoptions and Maintenance Act, 1956, Kannan v. Maragathammal, (2012) 3 LW 632.
When the husband obtained a decree of restitution of conjugal rights against the wife, it is
implied that the wife is required to join the company of the husband at her matrimonial home and
she is not entitled to be paid maintenance at least from the date of the said order, Smt. Manju
Kamal Mehra v. Kamal Pushkar Mehra, AIR 2010 Bom 34 : (2009) 5 Mah LJ 859.
There is no inconsistency between Section 125 CrPC and the provisions in the 1956 Act. The
scope of two laws is different, Savitaben Somabhai Bhatiya v. State of Gujarat, (2005) 3 SCC 636.
Section 10 of the Hindu Marriage Act and Section 18 of the Maintenance Act are quite distinct
and one cannot be said to be in control of the other. The former provision deals with the matrimonial
offences by either spouse which would justify the grant of a decree for judicial separation. Section
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18 provides for grant of maintenance to wife alone. Section 18 of the Maintenance Act does not
amend or abrogate the provisions of Section 10 of the Hindu Marriage Act, Rohini Kumari v.
Narendra Singh, (1972) 1 SCC 1.
Section 18(2)(d) must be literally interpreted and given the contemplated wide connotation to the
effect that a wife would be entitled to separate residence and maintenance if any other lawfully
wedded wife of the husband is living though not necessarily residing with the husband. In an
exceptional case where all the wives of a married man desert him and claim maintenance, he would
be required to pay maintenance to all his wives without any one of them living with him. If the clause
is interpreted to mean that unless at least one is residing with the husband, the other or others would
not be entitled to claim maintenance under section 18(2)(d), then that would amount to hardship to
the wives, Nanibai Mukundrao v. Mukundrao, 1981 Mah LJ 471.
The fact that the wife had never demanded arrears of maintenance and did not serve notice
making a claim is not a ground for rejecting claim for arrears of maintenance, Nanibai Mukundrao
v. Mukundrao, 1981 Mah LJ 471.
If the husband is wealthy and leading opulent life, his wife also has right to be the partner in his
prosperity and live with same standards and equal dignity. It does not lie in the mouth of the
husband, after separation of the spouses, to say that wife is no longer entitled to the standard in
which she has been living with the husband and that she should re-adopt the standard of her
parental home. The status of the parents of the wife is totally irrelevant consideration. After the
marriage, it is the status of the husband which is determinative of the quantum of Maintenance to be
given to the wife, Meenu Chopra v. Deepak Chopra, (2001) 59 DRJ 761 : AIR 2002 Del 131.
In case of a wife, Section 18(1) appears to confer an unfettered right to maintenance and the
phraseology of the section indicates that this right is limited to maintenance within the matrimonial
home. This right is also subject to the provisions of the section and a reference to Section 18(2)
indicates that when it comes to the right to maintenance with the right to live separately, it is not the
right to which a wife is entitled as a matter of course since the right under this sub-section is the
right to claim maintenance even while living separately and is, therefore, subject to any of the
conditions laid down in clauses (a) to (g) of the sub-section being satisfied, Ravevder Nath Sharma
v. Nagesh Sharma, ILR (1978) 2 Del 531.
The obligation to pay maintenance follows from marital relationship. If according to the personal
law of a person a marriage is not valid ipso jure, then the question of maintenance of the wife under
such void marriage does not arise. The concept of “illegitimate wife” does not come, under the
purview of Section 18 of the Act, Dr. Ranjit Kumar Bhattacharyya v. Smt. Sabita Bhattacharyya,
AIR 1996 Cal 301 : (1996) 1 Cal LJ 465.
There is no provision in the Act enabling and/or entitling a woman to claim maintenance from a
person with whom she had entered into a void marriage or of whom she was a concubine or even
an ‘Avaruddhastri’ as Section 18 of the Act, speaks of the maintenance of a Hindu wife by her
husband and the expression “wife” used in the said Section 18 obviously means a legally married
wife, Dr. Ranjit Kumar Bhattacharyya v. Smt. Sabita Bhattacharyya, AIR 1996 Cal 301 : (1996) 1
Cal LJ 465.
A bigamous marriage contacted after coming into force of the Hindu Marriage Act, 1955 would
be void ab initio and/or void ipso jure. The marriage of a woman in accordance with the Hindu rites
with a man having a spouse living at the time of marriage and after the Hindu Marriage Act, 1955
has come into force, is a nullity in the eye of law and such woman, is not entitled to get any
maintenance under the Hindu Adoptions and Maintenance Act, 1956 since she is not a legally
married wife, Dr. Ranjit Kumar Bhattacharyya v. Smt. Sabita Bhattacharyya, AIR 1996 Cal 301 :
(1996) 1 Cal LJ 465.
A bigamous marriage contracted after coming into force of the Hindu Marriage Act being null
and void, question of claim of maintenance by second wife cannot arise, Mangala Bhivaji Lad v.
Dhondiba Rambhau Aher, (2010) 4 Mah LJ 486.
Maintenance of a married wife, during subsistence of marriage, is on the husband. It is a
personal obligation. The obligation to maintain a daughter-in-law arises only when the husband has
died. Such an obligation can also be met from the properties of which the husband is a co-sharer
and not otherwise. For invoking the said provision, the husband must have a share in the property.
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The property in the name of the mother-in-law can neither be a subject-matter of attachment nor
during the lifetime of the husband, his personal liability to maintain his wife can be directed to be
enforced against such property, Vimlaben Ajitbhai Patel v. Vatslaben Ashokbhai Patel, (2008) 4
SCC 649.
► Daughter.—Under the proviso to Section 19(1), the words used are (a) from the estate of
her husband or her father or mother and they mean that she has a right-apart from the right she has
against the estate of her husband - a personal right against her father or mother during their
respective lives. The words the estate of before the words her husband, are not to be read into the
latter part of the clause as estate of her father or mother. What the proviso does here is to create (i)
a right against the estate of her husband and also (ii) an independent and personal right against the
father during his lifetime (or against the mother) if the daughter is unable to maintain herself out of
her earnings or other property etc. That right against the father during his lifetime can be enforced
against the property he is holding. The legislature has deliberately not used the words state of her
father in the proviso (a) to Section 19(1), Balwant Kaur v. Chanan Singh, (2000) 6 SCC 310.
► Interim Maintenance.—This Act does not contain any specific provision conferring power on
the Court to grant interim maintenance, but that would not be destructive of the power, if the Court
had one, whether inherent or otherwise, in aid of proceedings pending before it, to grant interim
relief in certain circumstances. The Court has ample power to grant interim maintenance, Ravevder
Nath Sharma v. Nagesh Sharma, ILR (1978) 2 Del 531.
In a petition for interim maintenance, even if the petition is filed under a wrong section, the Court
should not dismiss such petition abruptly and shirk its responsibility especially when interim
maintenance is sought by minor children from their duly bound father, when the said Court has got
enough jurisdiction to entertain such petition in any other provision of law, B.S. Jayalakshmi v. B.S.
Sairam, (2003) 4 CTC 153.
The fact that Section 18 of the Act does not make a provision for granting interim maintenance
cannot negative the claim for interim maintenance. The absence of a specific provision in the Hindu
Adoption and Maintenance Act, 1956, is immaterial and that the civil court has jurisdiction to grant
interim maintenance, Deivasigamani Udayar v. Rajarani Ammal, AIR 1973 Mad 369.
The Court hearing a suit under Section 18 of the Act by the wife for maintenance has jurisdiction
and power to pass appropriate interim and ad-interim orders granting maintenance. The provisions
of Section 18(1) of the Act give absolute entitlement to a Hindu wife to be maintained by her
husband during her life time. In the very nature of things, while passing such ad-interim orders, the
Judge has to take some ad hoc view of the matter. It is settled law that the appellate court will not
interfere with the discretion used by the Judge in such matters, Atul Sashikant Mude v. Niranjana
Atul Mude, (1998) 1 Mah LJ 618.
Once the interim maintenance is granted either under Section 24 of the Hindu Marriage Act or
under Section 18 of the Hindu Adoptions and Maintenance Act, then, there is no question of
entertaining the application under the other Act, Sangeeta Piyush Raj v. Piyush Chaturbhuj Raj,
AIR 1998 Bom 151.
In a suit filed under Section 18 of the Act, the Court has jurisdiction and power to pass
appropriate interim and ad-interim orders. There is nothing in this Act which prohibits the grant of
interim maintenance by the Court to the deserted wife. For doing real and substantial justice, Court
can exercise power under Section 151 of the Civil Procedure Code for grant of interim
maintenance, Sangeeta Piyush Raj v. Piyush Chaturbhuj Raj, AIR 1998 Bom 151.
The Court can grant interim maintenance under Section 18 of the Act in those cases where the
marital status is not to be affected or disrupted, Chand Dhawan v. Jawaharlal Dhawan, (1993) 3
SCC 406.
Under Section 18 of the Act, the wife can claim interim maintenance which may also cover
expenses incurred towards medical treatment. There is obligation on the part of the husband to pay
the medical expenses which cannot be deferred till final adjudication of the suit not even on the
ground that the amount of interim maintenance being passed includes the entire expenses on
medical treatment, Ajay Saxena v. Rachna Saxena, AIR 2007 Del 39.
► Live-in Relationship.—Live-in relationship, as such, is a relationship which has not been
socially accepted in India, unlike many other countries. A live-in relationship between two
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consenting adults of heterosexual sex does not amount to any offence even though it may be
perceived as immoral. However, in order to provide a remedy in civil law for protection of women,
from being victims of such relationship, first time in India, the DV Act has been enacted to cover the
couple having relationship in the nature of marriage, persons related by consanguinity, marriages,
etc. There are other legislations also where reliefs have been provided to women placed in certain
vulnerable situations. Section 125 CrPC, of course, provides for maintenance of a destitute wife and
Section 498-A IPC is related to mental cruelty inflicted on women by their husbands and in-laws.
Section 304-B IPC deals with the cases relating to dowry death. The Dowry Prohibition Act, 1961
was enacted to deal with the cases of dowry demands by the husband and family members. The
Hindu Adoptions and Maintenance Act, 1956 provides for grant of maintenance to a legally wedded
Hindu wife, and also deals with rules for adoption. The Hindu Marriage Act, 1955 refers to the
provisions dealing with solemnisation of marriage and also deals with the provisions for divorce. For
the first time, through, the DV Act, Parliament has recognised a “relationship in the nature of
marriage” and not a live-in relationship simpliciter, Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC
755 : (2014) 6 SCC (Cri) 593 : (2014) 5 SCC (Civ) 440.
► Section 125 CrPC.—Section 125 CrPC is a piece of social legislation which provides for a
summary and speedy relief by way of maintenance to a wife who is unable to maintain herself and
her children. Section 125 is not intended to provide for a full and final determination of status and
personal rights of parties, which is in the nature of a civil proceeding, though are governed by
provisions of CrPC and order made under Section 125 CrPC is tentative and is subject to final
determination of rights in a civil court. Hence suit for maintenance under the Hindu Adoptions and
Maintenance Act, 1956 is maintainable despite compromise in Section 125 CrPC proceedings,
Nagendrappa Natikar v. Neelamma, (2014) 14 SCC 452 : (2015) 1 SCC (Cri) 407 : (2015) 1 SCC
(Civ) 346.
► Enhancement of Maintenance.—Amount of permanent alimony awarded to wife must be
befitting status of parties and capacity of spouse to pay maintenance. Maintenance is always
dependant on factual situation of case and court would be justified in moulding claim for
maintenance passed on various factors, Kalyan Dey Chowdhury v. Rita Dey Chowdhury Nee
Nandy, (2017) 14 SCC 200.
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
cease on the remarriage of the daughter-in-law.
► Maintenance of Widow.—Even though there may have been as per uncodified Hindu law,
some obligation upon a father-in-law to maintain his widowed daughter-in-law even out of his self
acquired property; it has ceased to have effect and cannot be implemented if right to claim it
accrued after 1956 Act came into force, Venubai v. Laxman Lahanuji Rambhad, (2008) 3 Mah LJ
195.
Though the right of a widow to a share both in the separate and self acquired property as well as
the interest in the coparcenary property of her deceased husband is not liable to be divested on the
ground of remarriage, her right to maintenance under Sections 19 and 22 will cease on remarriage,
Animuthu v. Gandhiammal, (1977) 90 LW 390 : AIR 1977 Mad 372.
If father-in-law has not inherited any ancestral property or coparcenary property, he is not liable
to pay any interim maintenance to his widowed daughter-in-law, Daljit Singh v. S. Dara Singh, AIR
2000 Del 292.
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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 infirm 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
daughter who is unmarried extends insofar 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 stepmother.
► Maintenance of Children and Aged Parents.—Under this section a Hindu is bound, during
his or her lifetime, to maintain his or her children. A minor child so long as he is a minor can claim
maintenance from his or her father or mother. It is as much the obligation of the father to maintain a
minor child as that of the mother. It is not the law that howsoever affluent the mother may be it is the
obligation only of the father to maintain the minor, Padmja Sharma v. Ratan Lal Sharma, (2000) 4
SCC 266.
Under the Act, it is the obligation of a person to maintain his unmarried daughter if she is unable
to maintain herself, Jasbir Kaur Sehgal v. Distt. Judge, Dehradun, (1997) 7 SCC 7.
An unmarried daughter who is an adult cannot claim maintenance by way of marriage expenses
under Section 20(3) of the Act. A minor daughter is entitled to maintenance till date of attainment of
majority, Vaijayantabai v. Keru Anant Gangarde, (1992) 1 Mah LJ 417.
Every father is under an obligation to maintain his daughters and even to get them married. The
obligation to maintain the daughter and get her married is said to be personal in character and
arises from the very existence of the relationship. Even if a father who lives separately from his wife,
he cannot escape the liability to maintain his daughters. The law envisages that a father is bound to
make provision for the marriage expenses of the daughters as a part of maintenance. Therefore, if
wife has spent for the performance of the marriage of the daughter, the husband would certainly be
liable to reimburse the wife. He cannot escape his liability in any case, Kusum v. Krishnaji, (2008)
66 AIC 307 (Bom) : (2008) 2 Bom CR 24.
Though Section 20 of the Hindu Adoptions and Maintenance Act does not expressly prohibit the
parents to give maintenance, but no obligation is cast upon a Hindu to maintain the children when
they attain majority and Section 20 can be considered as a bar to claim the maintenance as of right
by a children who has attained the majority. In view of the same, the inherent power of the Court
cannot be exercised to get over the bar contained in Section 20, V. Kameswaramma v. V. Raghu
Ramulu, (1982) 2 AP LJ 44 (SN).
Under the Hindu Adoptions and Maintenance Act, 1956 it is the obligation of a person to maintain
his unmarried daughter if she is unable to maintain herself. When the wife has no income of her
own, it is the obligation of the husband to maintain her and her unmarried daughters even if they are
living with the wife, Jasbir Kaur Sehgal v. Distt. Judge, Dehradun, (1997) 7 SCC 7.
The expression ‘is unable to maintain himself or herself out of his or her own earnings or other
property’ is more in the nature of a proviso to the first part of Section 20(3) which imposes in most
unequivocal terms an obligation on the father or the mother regarding their unmarried daughter or
infirm or aged parents. It is, therefore, for the father or the mother to establish that his or her case
falls under the proviso. It does not seem to be the intention of the Act that a presumption of ability to
earn and maintain herself should, in the case of a Hindu girl, be raised from her bodily health or age
alone, Wali Ram v. Mukhtiar Kaur, ILR (1969) 2 P&H 534 : AIR 1969 P&H 285.
Section 20 of the Act, provides a right to the parent to recover maintenance from neglecting
children, Amit Kumar Sharma v. Vith Additional District And Sessions Judge, Bijnor, (1998) 34
ALR 214.
According to Section 20 of the Act, a Hindu is under a legal obligation to maintain his wife, minor
sons, unmarried daughters and aged or infirm parents. The obligation to maintain them is personal,
legal and absolute in character and arises from the very existence of the relationship between the
parties. Both son and daughter are liable to maintain aged or infirm parents including childless
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stepmother, when the latter is unable to maintain herself. A son has to maintain his mother
irrespective of the fact whether he inherits any property or not from his father, as on the basis of the
relationship alone he owes a duty and an obligation, legal and moral, to maintain his mother who has
given birth to him, Kirtikant D. Vadodaria v. State of Gujarat, (1996) 4 SCC 479.
► Interim Maintenance.—Though Section 125 CrPC does not fix liability of parents to maintain
children beyond attainment of majority, but right of a minor girl for maintenance from parents after
attaining majority till her marriage is recognized under Section 20(3) of Hindu Adoptions and
Maintenance Act. Therefore, on a combined reading of the two provisions it is justified to grant
maintenance under Section 125 to the daughter even after her attaining majority but till her marriage
to avoid multiplicity of proceedings, Jagdish Jugtawat v. Manju Lata, (2002) 5 SCC 422.
21. Dependants defined.—For the purposes of this Chapter “dependants” mean 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 remarry;
(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 is a 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-grandson, from the
estate of his father or mother or father's 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 granddaughter from her
father's or mother's estate and in the case of a great-granddaughter 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.
► Nature, Scope and Object.—Sections 21 and 22 read with Section 4 do not destroy or
affect any right of maintenance out of the estate of a deceased Hindu vested on his death before the
commencement of the Act under the Hindu law in force at the time of his death, Amireddi Raja
Gopala Rao v. Amireddi Sitharamamma, AIR 1965 SC 1970.
Sections 21 and 22 are prospective in their operation and the right of maintenance out of the
estate of a deceased Hindu vested on his death before the commencement of the Act under the
Hindu Law in force at the time of his death is not destroyed or affected in any manner whatsoever,
T. Appala Lakshmi Narasamba v. T. Sundaramma, (1981) 1 AP LJ 1 : AIR 1981 AP 88.
► Interpretation.—The word “dependant” is defined under Section 21 of the Hindu Adoptions
and Maintenance Act, 1956 to mean relatives of the deceased, namely, (1) his or her father; (2) his
or her mother; (3) his widow, so long as she does not remarry but does not include the wife whose
husband is surviving, Shobha Suresh Jumani v. Appellate Tribunal, Forfeited Property, (2001) 5
SCC 755.
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As per Section 21 (vi), if a deceased has left behind him his widowed daughter then 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 from her father-in-law or his father or the estate of
either of them, then such widowed daughter is to be treated as a “dependant” of the deceased. As
enjoined by Section 22, she gets the legal right of being maintained out of the estate inherited by
any of the heirs of her deceased father, Balwant Kaur v. Chanan Singh, (2000) 6 SCC 310.
► Maintenance of Dependants.—Under Section 22(2), the dependant of the deceased would
be entitled to maintenance from the heir of the deceased, provided such dependant has not
acquired, whether by testamentary or intestate succession, any share in the estate of the deceased.
If the widow of a deceased has also succeeded as one of his heirs, whether through testament or
on intestacy, the question of her right to be maintained by some other heir of the deceased out of
the estate of the deceased would not arise, Panna Lal Hazra v. Fulmani Hazra, AIR 1987 Cal 368.
Under Section 22 of the Act, the step-son would be liable to maintain his stepmother, as being
the widow and therefore a “dependant” of his deceased father within the meaning of Section 21(iii)
of the Act; but the liability under Section 22(1) is not at all personal, but absolutely proprietary as
would be apparent from the relevant provisions of Section 22(1). The step-son would be liable to
maintain his step-mother as being the dependant of his deceased father, provided the son as heir of
his deceased father has inherited some estate from his deceased father, Panna Lal Hazra v.
Fulmani Hazra, AIR 1987 Cal 368.
There is a moral obligation on the father-in-law to maintain the daughter-in-law and that the heirs
who inherit the property are liable to maintain the dependents. The Hindu heirs should maintain the
dependents of the person of property they succeeded. Merely because the property is transferred
by gift or by Will in favour of the heirs, the legal obligation is not extinct. When there is property in
the hands of the heirs belonging to the deceased who had a moral duty to provide maintenance, it
becomes a legal duty on the heirs. It makes no difference whether the property is received either by
way of succession or by way of gift or Will, the principle being common in either case, T. Appala
Lakshmi Narasamba v. T. Sundaramma, (1981) 1 AP LJ 1 : AIR 1981 AP 88.
Section 22(2) indicates that once a person is found to be a “dependant” of the deceased, then
such a “dependant” has a pre-existing right qua the estate of the deceased to get maintenance and
that right, if not crystallised by way of grant of definite share in the estate of the deceased either
one his intestacy or on the coming into operation of his testament in favour of the dependant, then
such pre-existing right of maintenance would remain operative even after the death of the Hindu and
would get attached to the estate which may get transmitted to his heirs either on his intestacy or on
account of the testamentary disposition in their favour. Thus, Section 22(2) underscores pre-existing
right of maintenance in favour of the “defendant” qua the estate of the Hindu, Balwant Kaur v.
Chanan Singh, (2000) 6 SCC 310.
A destitute widowed daughter has a right of maintenance against her brothers after the death of
her father when she could not get sufficient provision from her deceased husband's family for her
maintenance, K. Varaprasada Rao v. K. Chinna Venkaiah, (1990) 2 AP LJ 73.
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 take 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.
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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
consideration set out in 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 awarded 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 claimant's own earning or from any other source;
(e) the number of persons entitled to maintenance under this Act.
(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 provision, 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 dependant;
(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 course;
(g) the number of dependants entitled to maintenance under this Act.
► Maintenance of, Generally.—The amount of maintenance should enable the lady to live as
far as may be consistently with the position of a widow in something like the same degree of comfort
and with the same reasonable luxury of life as she had in her husband's lifetime. The quantum of
maintenance should be determined upon a gathering together of all the facts of the situation, the
amount of free estate, the past life of the married parties and the families, a survey of the conditions
and necessities and rights of the members, on a reasonable view of change of circumstances
possibly required in the future, regard being, of course, had to the scale and mode of living, and to
age, habits, wants and class of life of the parties, Kulbhushan Kumar v. Raj Kumari, (1970) 3 SCC
129.
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 of 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.
► Alteration in Maintenance.—The amount of maintenance though fixed by the agreement
between the parties can be altered subsequently if there is a material change in the circumstances
justifying such alterations, Sanjay v. Vidya, (2006) 4 Mah LJ 805.
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
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agreement between the dependant and the owner of the estate or portion, or
otherwise.
► Applicability.—This section applies to case of creation of charge on estate of deceased, not
estate of living person, Siddagangaiah v. N.K. Giriraja Shetty, (2018) 7 SCC 278.
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.
► Effect of transfer of property on Right to Maintenance.—Section 28 specifically deals
with the effect of transfer of property on right to maintenance so far as it relates to dependents does
not necessarily mean that the right of a wife in case of a transfer falling within the purview of Section
39 of the Transfer of Property Act has been abrogated. Not only is Section 39 of the Transfer of
Property Act not within the purview of Section 4(a) but is also not inconsistent with any of the
provisions of the Act so far as a wife is concerned, Ramswamy Gounder v. Baghyammal, (1967)
80 LW 12 : AIR 1967 Mad 457.
Section 39 of the Transfer of Property Act, 1882 is in pari materia with Section 28 of the Hindu
Adoptions and Maintenance Act, Sadhu Singh v. Gurdwara Sahib Narike, (2006) 8 SCC 75.
Widow has a right to maintenance out of her deceased husband's property. Heirs of the
deceased are obliged to maintain the widow out of the property of the deceased inherited by them.
Widow can also enforce her right to receive maintenance even against the transferee of her
deceased husband's property. However, widow has no charge for maintenance on the separate
property of her husband, in absence of any decree or instrument providing for it, Sadhu Singh v.
Gurdwara Sahib Narike, (2006) 8 SCC 75.
► Right to receive maintenance.—Right to receive maintenance can be enforced by third
person against transferee of property only if transferee has been put in possession thereof. Section
39 of Transfer of Property Act, 1882 is akin to Section 28 of Hindu Adoptions and Maintenance Act,
1956, Siddagangaiah v. N.K. Giriraja Shetty, (2018) 7 SCC 278.
Chapter IV
REPEALS AND SAVINGS
29. Repeals.—14 [* * *]
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.
► Interpretation.—The provisions of the Act of 1956 are not to affect any adoption made
before its commencement. The second part of Section 30 clarifies what is embodied in the first part.
The validity of the adoption made before the commencement of the Act as also its effect will have to
be examined and determined with reference to the law or the custom as it stood prior to the coming
into force of the Act and not in accordance with it. The expression “affect any adoption” necessarily
means affect an adoption as to its “validity and effect”. Neither of the expressions takes within its
sweep any of the other incidents or characteristics of the law or the custom of adoption under which
it is made. The incident or characteristic of any custom which entitles either party to revoke the
adoption is not a matter concerning the validity and the effect of adoption, Daniraiji Varlalji v. Vahuji
Maharaj Shri Chandraprabha, (1975) 1 SCC 612.
———
1.The Act received the assent of the President on the 21st December, 1956 and has been published in the
Gazette of India, Extra., Part II, Section I, dated the 22nd December, 1956.
2.
The words “except the State of Jammu and Kashmir” omitted by Act 34 of 2019, Ss. 95, 96 and Sch. V (w.e.f.
31-10-2019).
3. The word “and” omitted by Act 45 of 1962.
4. Ins. by Act 45 of 1962.
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5. Ins. by Act 26 of 1968, S. 2 & Sch.

6. Subs. by Act 30 of 2010, S. 3. Prior to substitution it read as:
“8. Capacity of a female Hindu to take in adoption.—Any female Hindu—
(a) who is of 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.”.
7.
Subs. by Act 30 of 2010, S. 4. Prior to substitution it read as:
“(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.”.
8. Omitted. by Act 30 of 2010, S. 4. Prior to omission it read as:

“(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.”.
9. Subs. by Act 45 of 1962.
10. The word “and” omitted by Act 45 of 1962.

11. Ins. by Act 45 of 1962.
12. Ins. by Act 45 of 1962.
13. Omitted by Act 6 of 2019, S. 6 (w.e.f. 1-3-2019). Prior to omission it read as:
“(c ) if he is suffering from a virulent form of leprosy;”

14. Repealed by Act 58 of 1960. Prior to repeal it read as:
“Repeals.—The Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 (19 of
1946), and sub-section (2) of Section 30 of the Hindu Succession Act, 1956 (30 of 1956), are hereby
repealed.”
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake
or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/
rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The
authenticity of this text must be verified from the original source.

Hindu Adoptions and Maintenance Act, 1956

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Hindu Adoptions and Maintenance Act, 1956

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SCC Online Web Edition, Copyright © 2020

Page 1 Saturday, October 17, 2020

1. Short title and extent

4. Overriding effect of Act

5. Adoptions to be regulated by this Chapter

6. Requisites of a valid adoption

7. Capacity of a male Hindu to take in adoption

8. Capacity of a female Hindu to take in adoption

9. Persons capable of giving in adoption

10. Persons who may be adopted

11. Other conditions for a valid adoption

12. Effect of adoptions

13. Right of adoptive parents to dispose of their properties

14. Determination of adoptive mother in certain cases

15. Valid adoption not to be cancelled

16. Presumption as to registered documents relating to adoption

17. Prohibition of certain payments

18. Maintenance of wife

19. Maintenance of widowed daughter-in-law

20. Maintenance of children and aged parents

21. Dependants defined

22. Maintenance of dependants

23. Amount of maintenance

24. Claimant to maintenance should be a Hindu

25. Amount of maintenance may be altered on change of circumstances

26. Debts to have priority

27. Maintenance when to be a charge

28. Effect of transfer of property on right to maintenance

REPEALS AND SAVINGS

Hindu Adoptions and Maintenance Act, 19561

shall have equal right to give a son or daughter in adoption:

5. Ins. by Act 26 of 1968, S. 2 & Sch.

(a) who is of sound mind,

(b) who is not a minor, and

8. Omitted. by Act 30 of 2010, S. 4. Prior to omission it read as:

10. The word “and” omitted by Act 45 of 1962.

“(c ) if he is suffering from a virulent form of leprosy;”

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