Changes made to the Hindu Adoption Laws by Hindu Adoption and Maintenance Act, 1956
The Act received the assent of the President on 21st of December, 1956. The Act extends to whole of India except the state of Jammu and Kashmir. It will apply to all the Hindus living within the territory in India. The Act does not mention any thing regarding the adoption which had taken place before the enforcement of the Act, therefore it implies that all the adoptions which became effective before the coming of the present Act should be taken to be valid if they were in accordance with the previous law, irrespective of the fact that they are in consonance with the present Act or not.
Changes Made By the Act:
The Act has brought about remarkable changes in the law of adoption, some of which are as under:—
(1) The Act will apply only to Hindus but the term Hindu has been interpreted in a very wide connotation so as to include Jains, Sikhs, and Buddhists. All the texts, rules and customes, which were in vouge, immediately before the Act came into existence shall cease to have effect with respect to any matter for which provision is made in this Act.
(2) The Act specially affected the right and capacity of a Hindu female to adopt a child. Married women cannot adopt a child in the life time of her husband without his consent. After the death of the husband she becomes fully competent to adopt a child. She no longer requires the prior consent of her husband to adopt after the death of her husband. Hindu female’s right to adopt has been considerably enlarged. She can adopt even during her maidenhood or after the death of her husband in case he had died issueless.
(3) The Act provides for the adoption not only of boys but also of girls.
(4) The Act does not provide for the performance of ceremony of ‘Datta Homam’. The only requirements under the Act is to transfer the boy or the girl physically and acceptance of the child in adoption by the adoptor.
(5) There have been a significant changes in the law relating to the consequences of a valid adoption. Now after the Act the adopted child cannot divest any person of any property in the adoptive family which has already vested in him. Under the old law the adopted son was competent to divest any colleteral of any property which had vested in him before the act of his adoption, but under the present Act the adopted child cannot do the same.
Thus the Doctrine of Relation Back has been completely abrogated according to which a son adopted by the widow was deemed to have come into existence in the adoptive family on the day of the death of her husband.
(6) Now under the present Act a male Hindu cannot adopt a child except with the consent of his wife whereas no such law existed prior to the Act. Under the old law the widow could not adopt except the consent of her husband. The law has been reversed.
(7) The present law of adoption has been applied to all the sub-schools of Mitakshara as well as Dayabhag alike and all the difference which existed between two schools have come to an end.
The concept of adoption has undergone a remarkable change. It is no longer based on the religious and spiritual considerations. The old law emphasised upon the need of the adoption in order to extend spritual benefit to the father and ancestors and to continue family line.
The secular aspect was secondary but the present Act has completely ignored the spiritual aspect and rendered it completely secular. This fact becomes distinct from the fact that the Act has permitted the adoption of a girl also and secondly, the ceremony Datta Homam is no longer necessary for adoption.