Adoption by Widow
India is known for its diversity, which has always made it unique and evolved over time from ancient India to modern India. Based on their distinct religions, cultures, and beliefs, Indians adhere to their own personal laws.
All religions’ personal laws primarily address the concepts of marriage, maintenance, succession, and gifts. A striking difference between the personal laws comes up when we talk about Adoption because in Hindu law adoption is widely recognised and is considered to be an existential theory but on the contrary Muslim, Parsi, Jews and Christian personal laws does not recognise the idea, notion of adoption. As one of the predominant religions in our nation, Hinduism beliefs Dhramaashastra. A number of eminent scholars, including Manu, Saunaka, Vashistha, and others, have produced, explained, and interpreted ancient scriptures that, in modern India, are regarded as the origins of the Hindu literature and have since been the basis for Hindu personal law.
Since earlier times, the objective of adoption has held spiritual and religious beliefs. The act of giving (gifting) a son away in a family involves severing all links to the previous one and beginning a new life with the new family’s members as if the child had been born in their own home, in order for the son to continue and preserve the family lineage. Although adoption has been practiced for many years, the law only became enforceable in the 19th century. According to Manu and other prominent scholars, there are in total 12 types of Sons recognized in Hinduism out of which Dattaka is the ‘adopted son’.
Adoption and women’s roles in society grown remarkably. Females were not allowed to adopt without the consent of her husband, and especially unmarried or widows were not allowed to adopt, but with the passage of time and betterment in opinions, personal laws have changed and now it is codified, called ‘The Hindu Adoptions and Maintenance Act, 1956,’ which explicitly mentions that females are permitted to adopt child provided that she is of sound mind and not a minor, and this right has now been conferred up on Widows also.
State of widow’s In India before Hindu Adoption and Maintenance Act, 1956
A widow is a lady who has not remarried after her husband passed away.
Widows don’t have a positive reputation in society; they are held accountable, pressured to alter their way of life, and expected to live their lives in sorrow. They are also improperly looked up to, treated with disrespect, and seen as a bad omen for society in general and due to the challenging conditions in earlier times, adoption was not a popular idea among widows.
Adoption for widows was forbidden and the only adoption that was permitted was subject to the requirement that the husband must have consented to the adoption. As a result, before his passing, the husband could specify that his widow adopt a kid, but the adoption had to be done in his name. This means that the widow was not allowed to adopt the child for herself or anybody else other than the husband. Adoption was only acknowledged and permitted under the husband’s name. The only schools which allowed an adoption by a widow without her husband’s authority and consent are the Dravida (Madras) School and the Maharashtra (Bombay) School.
Is adoption allowed for Widows?
The Hindu Adoption and Maintenance Act 1956 was passed in 1956 as a result of the personal laws gradually evolving over time and being amended. The aforementioned Act gives Hindu women more freedom by eliminating all the limitations that existed prior to 1956. Nothing in the statute indicates that the husband’s approval is required or that the widow is not eligible to adopt a child.
‘Section 8’ of Hindu Adoption and Maintenance Act 1956 state that –
Capacity of a female Hindu to take in adoption —any female Hindu—
- Whois of sound mind
- Whois not a minor, and
- Who is not married, or if married, whose marriage has been dissolved orwhose 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
There are few conditions which are mandatory for adopting a child under this act which are (in respect with widow’s), mentioned below –
- There has to be 21 years age gap between the widow and adoptivechild which means the widow should be 21 years older than the adoptive
- In case there exists a biological son/daughter of the widow already then the adoptive child of opposite sex has to be adopted and not of the same sex/gender.
- Oncethe adoption is made then this process legit becomes irrevocable, meaning that there is no way the child which has been adopted would again become a non-adopted
- Children who are to be adopted must be below the age of 15 years.That denotes before the child attains age of 15 years child has to be adopted and not after.
This act applies to Hindus, Sikhs, Jain, and Buddhists. Non-Hindus who desire to adopt a kid can do so through the Juvenile Justice Act of 2000.
Doctrine of Relation Back
The doctrine states that – If a widow adopts a son after having consent from her husband or having authority of her husband then the adoptive son is deemed to have come into existence in the new family on the day when husband died.
- Illustration– Husband dies on 5-01-2021 and Widow adopts on 5-02- 2021, then the doctrine of relations back applies as on the death day of the husband, the adoptive son deemed to have come in to the new family that on 05-01-2021 and not on 5-02-2021.
The theory is against the rule that a property once vested cannot be divested. The theory was based on upon the legal fiction that the continuity of the line of the adoptive father should not break.ii
There are 2 exceptions to this doctrine of relation back
- Any Lawful alienation effected before the adoptive child came into the family and after the death of the husband is totally legal and adoptive son is binding to that effect.
- If the property by inheritance went to collateral, then the adoptive childwho entered the family cannot divest the property which was vested in the heir of collateral.
Section 12 of Hindu Adoption and Maintenance Act 1956 revolved around this Doctrine. This section mentions that –
An adopted child shall be considered the child of his or her adoptive father or mother for all purposes as of the date of adoption, and all ties of the child to his or her birth family shall be deemed severed and replaced by those generated by the adoption in the adoptive family:
- The child cannot marry a person he or she could not have married if he orshe had remained in the family of his or her birth;
- Anyproperty which vested in the adopted child before the adoption continues to vest in such person subject to the obligations attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth;
- Theadopted child shall not divest a person of any property that vested in him or her prior to the adoption.
Case in which Supreme Court revived the Doctrine of Relation Back –
This doctrine has undergone a number of changes; prior to the 1956 act, this doctrine was widely accepted then later it was repealed, then taking into account the facts and circumstances of the below mentioned case, the doctrine was reinstated.
- Sawan Kalawanti – Husband passed away without leaving an heir, widow inherited his estate as a limited owner, and she later gave the land to her niece. Collaterals of Husband
challenged this and brought up suit saying that his widow is limited owner, here the court held the gift invalid. Later, the widow adopted a son; at this point, the adopted son claimed ownership of the property, which the collateral vehemently disputed giving. The Supreme Court ruled that the adopted Son became a family member of this family as on the date when husband died, hence the adoptive son automatically becomes the son of the deceased person. Hence the doctrine was revived.
AnkushNarayan Janabai – In this particular case, the Bombay High Court ruled that when a widow adopts a child, all of the adoptive son’s links with the family he was born into are formally severed. The adoptive family is the new family that is created, reserved, and given all the rights. In these circumstances, his father is also the mother’s bereaved spouse who passed away.
Adoption under Guardians and Wards Acts 1890
Adoption is not recognised by Muslims, Christians, Parsis, or Jews. Therefore under the Guardian and Ward Act of 1890, individuals of these religions in India can adopt a child. Unlike the Hindu Adoption and Maintenance Act (which allows to adopt a child legally), Guardian and Ward Act does not establishes a relation of adoptive parent but only of a Guardian and Ward between the Adoptive Parent and Adoptive child.
CARA – CENTRAL ADOPTION RESCOURCE AUTHORITY (BOON FOR WOMEN)
CARA is a statutory body under government of India under the department of Ministry of women and child development. This body is authorized and responsible for inter country and in country adoptions.
In essence, CARA encourages adoption and has established adoption criteria. It empowers single women and widows to adopt a child regardless of the child’s gender. The widow or single woman has to be physically, emotionally, financially, mentally capable and stable and should not have been convicted in criminal act of any nature or accused in any case of child rights violation.v
In the case of P vs. Union of India WP(C) No. 65/2023VI, it is held that since the pregnant woman, age 19, would be unable to care for the child, the petitioner proposed for adoption and due to the advanced stage of the pregnancy, it has been determined that placing the child up for adoption is in the best interests of both the mother and the fetus.
Procedure of Adoption through CARA – Prospective Adoptive Parents (PAP) must upload their adoption application and supporting documents to CARA’s website in order to adopt a child from India. A social worker from a Specialized Adoption Agency (SAA), which is a CARA-recognized agency, conducts a home study of the PAP, which is then uploaded to the website. The SAA then shares the profiles of children determined to be legally available for adoption with prospective parents, who are expected to place a reservation within 48 hours. The SAA must then match the child with the prospective parent within 20 days.
Adoption as a concept has evolved over time and, most notably for widows in our nation, has undergone some good developments that have resulted in more accepting and gender-neutral regulations. Adoption presents a perfect opportunity for a widow who is already dejected and feels rejected by society to give a child all of her motherly love. In this situation, she has no one who would be attentive enough to care for her or whom she could care for.
Under the Hindu Adoption and Maintenance Act 1956, widows who are Hindu by religion are eligible to adopt a child. For other religions, different acts have been established through which adoption is now permitted.
- Book– Hindu Law by Mulla 23rd editionvi.
- Book– Modern Hindu Law by Paras Diwan 24th edition
- ResearchPaper – by Niraj Meena on topic – Adoption Laws in India: Challenging Existing law from
- Research Paper – by Samragyi Sajwan on topic – Adoption in India: A critical analysis. From – International Journal of Law ISSN: 2455-2194 Volume 4; Issue 2; March 2018; Page No. 247-250 – www.lawjournals.org
- Hindu Law Book, Author – Mulla (23rd edition)
- Tahsil Naidu & Anr vs Kulla Naidu & Ors, A.I.R. 1970 S.C 1673 (India)
- A.I.R. 1987 S.C. 398 (India)
- AIR 1966 Bom 174
- http://cara.nic.in/about/about_cara.html , last visited on 28-01-2023.
- WP(C) No. 65/2023 – Supreme Court