The attention of Ramamurthi, j. Under Hindu Adoptions and Maintenance Act, 1956 the adopted child must fall under the Hindu category. Their source has originated after the establishment of English State in India, when English rulers started enacting several laws. The wife is allowed to live separately from her husband and still be provided for by him. 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. If no executor has been appointed by the father, the guardianship passes on to the paternal grandfather.
Under the Muslim law, the father enjoys a dominant position. Section l6 provides for the legitimacy of child born in void and voidable marriages. Besides, such a child does not have legal right of inheritance. 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. These different areas are governed by different Digest and Commentaries. Since adoption is legal affiliation of a child, it forms the subject matter of personal law. For an adoptive son, the adoptive father is the primary guardian, then the adoptive mother.
The act makes no distinction between the person of the minor and his property and, therefore guardianship implies control over both. Under the Act, thus, agreements restricting the power of alienation of the adoptive parents is void. The proof of giving and taking of child is not necessary; Pathivada Rama Swami v. 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. Adoption under Hindu Law: The Shastric Hindu Law looked at adoption more as a sacramental than secular act.
In the matter of liability of children to maintain parents, the law treats both own and adopted children equally. Right of adoptive parents to dispose of their properties. Comments Quantum of maintenance The amount payable by way of maintenance depends on the facts of each case and as such, no exception could be taken to the amount fixed by the trial Court as well as the date from which the maintenance could be claimed; Vasantha v. This Act extends to the whole of India except the state of Jammu and Kashmir. The Hindu Minority and Guardianship Act of 1956 was meant to enhance the Guardians and Wards Act of 1890, not serve as its replacement.
It was held that the effect of mitakshara school is so strong that it also applies to even undescribed subjects in Bengal and Assam. The guardian may give the child in adoption with the prior permission of the court. According to it, marriage shall be solemnised according to customary tradition and rituals. However this may not be essential in all cases as to the validity of adoption? Adoption is recognized by the Hindus and is not recognized by Muslims, Christian and Parsis. Kalavati, the Supreme Court has held that in the case of adoption by a widow, the adoption would not only be by the female, but also to her deceased husband.
Thus an adoptive parent is in no way restrained in the disposal of their property by reason of adoption. It is not a substitute for actual giving or taking. If any party to marriage devoids the other party from cohabitation even with living in one house, it shall be desertion. Actually Britishers not only established a judicial system in India but also facilitated though the High Court charters that wherever their is lack of lawful rules, their the decision should be on the principles of equity, justice and good conscience. What Makes an Adoption Just and Valid? Neither section 18 relating to maintenance of wife nor section 21 dealing with widow provides for any charge for maintenance on separate property of husband; Sadhu Singh v. The coparcenary evolves with the birth of a son. Today most of the subjects of Hindu Law has been codified.
Smritis are divided into two : ii Dharam Shashtra :- Are famous for Manu Smriti, Yagyavalkya Smriti, Narad Smriti etc. The full bench has now overruled this decision. The obligation to maintain the wife remains on the husband even though the wife might be living separately. Shamgonda Raygonda Patil by the Bombay High Court that an adoptee can take only that property to his adoptive family from his birth family which is already vested in the adoptee prior to adoption by inheritance or by partition in the natural family or as sole surviving coparcener as he becomes its absolute owner. Thus desertion is not abandonment of place, but is of situation. Where saptpadi is necessary it required to be performed compulsoryily.
Right of adoptive parents to dispose of their properties — Section 13 Section 13 lays down that where there is no 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. Next, they have to have the capacity to be able to provide for the adopted child. In particular, if a son were to be adopted then the adoptive father or mother must not have a alive legitimate or adopted son living with them. In the case of Narinderjit Kaur v. Me 31 yr old and my wife 29 year old are happy with it and also have a one year old daughter. Where, as among Maharashtra School and Jains a person of any age can be adopted refer case of Bishan v.