PAPER-II: FAMILY LAW-I (Hindu Law) Unit-IIl:

PAPER-II: FAMILY LAW-I (Hindu Law)

Unit-IIl:

✅ Q.1. Explain the concept of Adoption under Hindu Law. What are the essential conditions for a valid adoption under the Hindu Adoption and Maintenance Act, 1956?
[Long Answer]

📘 Introduction:

Adoption is an ancient and recognized concept under Hindu law, rooted in religious and social practices. It was traditionally considered a sacramental act to secure spiritual benefit by continuing the family lineage and performing the last rites. The modern statutory law governing adoption among Hindus is the Hindu Adoption and Maintenance Act, 1956 (HAMA), which codifies and modernizes the traditional rules.

🔷 Meaning of Adoption under Hindu Law:

Adoption is the process by which a person (usually a child) is taken into another family as a lawful child. It creates a legal relationship of parent and child between individuals who are not biologically related.

According to Section 2 of the Act, the Hindu Adoption and Maintenance Act, 1956 applies to Hindus, Buddhists, Jains, and Sikhs.

🔷 Objectives of Adoption:

To secure a legal heir.
To continue the family lineage.
To fulfill the religious obligation of performing funeral rites.
To provide love, care, and protection to orphaned or abandoned children.

✅ Who can Adopt? (Section 7 and 8)

🔹 1. Male Hindu can adopt if:

He is of sound mind.
He is not a minor.
If married, consent of his wife is necessary, unless:
- She is of unsound mind,
- She has renounced the world,
- She has ceased to be a Hindu,
- She is deceased.

🔹 2. Female Hindu can adopt if:

She is of sound mind,
She is not a minor,
She is unmarried, or if married:
- Her husband is dead, or
- He has renounced the world, or
- He has ceased to be a Hindu, or
- He has been declared of unsound mind.

✅ Who can be Adopted? (Section 10)

A child can be adopted if:

He/she is a Hindu.
He/she has not been adopted previously.
He/she is unmarried.
He/she is below 15 years of age, unless custom or usage permits adoption above that age.

✅ Essential Conditions for a Valid Adoption (Section 6 of the Act)

For a valid adoption under the Act, the following conditions must be fulfilled:

🔹 (a) Capacity of the person adopting:

The adopter must be capable (as described in Sec. 7 and 8 above).

🔹 (b) Capacity of the person giving in adoption:

Only the father, mother, or guardian can give a child in adoption.
If both parents are alive, both must consent, unless one is incapable.

🔹 (c) Capability of the child to be adopted:

The child must fulfill all the conditions under Section 10.

🔹 (d) Actual giving and taking ceremony (Datta Homam):

There must be an actual transfer of the child from the biological family to the adoptive family.
Physical giving and taking is mandatory, symbolizing the intention to transfer the child.

🔹 (e) Age difference rule (Section 11):

If a male adopts a female child, he must be at least 21 years older than the child.
If a female adopts a male child, she must be at least 21 years older than the child.

🔹 (f) Adoption of one child of each gender:

A Hindu cannot adopt more than one child of the same gender if they already have a child (biological or adopted) of that gender.

✅ Effect of Adoption (Section 12)

Once adopted:

The child is deemed to be the child of the adoptive parents for all purposes.
The child severs all ties with the biological family.
The child acquires all the rights and liabilities of a natural-born child in the adoptive family.

🔍 Important Case Laws:

Laxmi Kant Pandey v. Union of India (1984):
The Supreme Court laid down guidelines for inter-country adoptions to protect the interest of the child.
Ghisalal v. Dhapubai (2011):
The Supreme Court emphasized that a valid adoption must comply with the statutory requirements; otherwise, it will be void.

📚 Conclusion:

The Hindu Adoption and Maintenance Act, 1956 has transformed the traditional concept of adoption into a secular and legally enforceable process. It aims to safeguard the rights of adopted children and ensure their well-being, while maintaining religious and social values of Hindu society. Compliance with all the essential conditions is mandatory for the adoption to be valid in the eyes of law.

✅ Q.2. Discuss the legal effects and consequences of a valid adoption under the Hindu Adoption and Maintenance Act, 1956.
[Long Answer]

📘 Introduction:

Adoption under Hindu law is a legally recognized process that transfers a child from the biological family to the adoptive family, creating a permanent parent-child relationship. The Hindu Adoption and Maintenance Act, 1956 (HAMA) lays down not only the conditions for a valid adoption but also the legal consequences that follow such adoption. Once the adoption is validly made, it is final and irrevocable, and it alters the status, rights, and liabilities of the adopted child and the adoptive parents.

✅ Legal Effects of a Valid Adoption

(Section 12 of the HAMA, 1956)

According to Section 12, an adopted child shall be deemed to be the child of his or her adoptive parents for all purposes from the date of adoption, and all ties with the biological family are severed. However, some specific effects and consequences are explained below:

🔷 1. Adopted Child is Deemed to be the Natural Child of Adoptive Parents:

Once adopted, the child acquires all legal rights, duties, and obligations in the adoptive family, as if he/she were their biological child.
The adopted child can inherit property from adoptive parents.

🔹 Example: If a Hindu couple adopts a son, that son becomes their lawful heir and can claim a share in their ancestral and self-acquired property.

🔷 2. Termination of Relationship with Biological Family:

All ties with the biological family are completely severed.
The child loses the right to inherit any property from the biological family, and the biological parents cannot claim any rights over the child.

🔹 Exception: Prohibition against divesting vested rights
As per Section 12 (c), adoption does not divest any person of any estate which vested in him/her before the adoption.

🔷 3. Inheritance Rights:

The adopted child becomes a coparcener in the adoptive joint Hindu family.
He has the same rights of succession, partition, and inheritance as a natural-born son.

🔹 Case Law:
Ghisalal v. Dhapubai (2011) – The court held that adoption is legally valid only when all conditions are met, and after valid adoption, inheritance rights flow from the adoptive family.

🔷 4. Obligations and Duties of Adopted Child:

The adopted child has a moral and legal duty to maintain adoptive parents during their old age.
The adopted child cannot renounce or disown the adoptive family later.

🔷 5. Religious and Ceremonial Rights:

The adopted son is entitled to perform the last rites (Shraddha) of the adoptive parents.
This is particularly important under Hindu customs where only a son can perform certain religious rites.

🔷 6. Right of Adoptive Parents:

The adoptive parents have complete authority over the child.
They have the right to decide the child’s education, religion, upbringing, and marriage.
They can also include the adopted child in wills and gift deeds.

🔷 7. Adoption is Final and Irrevocable:

Once made in accordance with the law, adoption cannot be canceled either by the adoptive parents or by the adopted child.
Even if the child misbehaves or the parents regret the adoption, the legal status remains unchanged.

🔹 Case Law:
Ramakrishna v. State of Maharashtra (1974) – It was held that a validly adopted child cannot be given back nor can the adoption be revoked under any circumstances.

🔷 8. No Re-adoption or Double Adoption:

A person who has once been adopted cannot be adopted again by another person.
A valid adoption creates a permanent and exclusive parent-child relationship.

🔷 9. Bar on Adoption of Same Gender if One Child Already Exists:

As per Section 11, if adoptive parents already have a child of the same gender, they cannot adopt another child of the same gender, to avoid issues of overlapping inheritance rights.

📚 Conclusion:

A valid adoption under the Hindu Adoption and Maintenance Act, 1956 results in complete transfer of the child from the biological family to the adoptive family. It creates full legal, social, and religious integration of the child into the adoptive household. The adopted child enjoys all rights and assumes all responsibilities, as if born in that family. Adoption is thus not merely a transfer of custody but a complete legal substitution of parental ties, with permanent legal consequences.

✅ Q.3. Who can claim maintenance under the Hindu Adoption and Maintenance Act, 1956? Explain the provisions regarding maintenance of wife, children, aged parents, and widowed daughter-in-law.
[Long Answer]

📘 Introduction:

The Hindu Adoption and Maintenance Act, 1956 (HAMA) is a key legislation that not only deals with adoption but also comprehensively provides for maintenance of certain relatives. The Act imposes a legal obligation on a Hindu to maintain specified dependents, including wife, children, aged parents, and widowed daughter-in-law. These provisions are intended to ensure social justice and protection to those who are unable to maintain themselves.

✅ Meaning of Maintenance (Section 3(b)):

The term “maintenance” includes:

Provision for food, clothing, residence, education and medical attendance and treatment;
In the case of an unmarried daughter, it also includes reasonable expenses of marriage.

✅ Who Can Claim Maintenance under HAMA, 1956?

Under Chapter III (Sections 18 to 22) of the Act, the following persons are entitled to claim maintenance:

🔷 1. Wife – (Section 18)

A Hindu wife, whether married before or after the commencement of the Act, is entitled to be maintained by her husband during her lifetime.

✅ Right to Maintenance Includes:

Residence, food, clothing, medical aid, and other basic needs.
A wife can claim maintenance even if she is living separately, provided the separation is on justifiable grounds.

✅ Grounds for Living Separately and Still Claiming Maintenance:

As per Section 18(2):

If the husband is guilty of desertion or cruelty.
If the husband has any other wife living.
If the husband has converted to another religion.
If the husband has a venereal disease.
If he has treated her with cruelty or neglected her.

🔹 Note: A wife loses her right to maintenance if she is unchaste or has converted to another religion (Section 18(3)).

🔷 2. Children and Aged Parents – (Section 20)

✅ Children:

A Hindu is bound to maintain his or her:

Legitimate or illegitimate minor children (son and daughter),
Unmarried major daughter, if she is unable to maintain herself.

Children are entitled to maintenance till they attain majority, unless they are unable to earn due to physical or mental infirmity.

✅ Aged or Infirm Parents:

Both father and mother (whether natural or adoptive) are entitled to claim maintenance if they are unable to maintain themselves.
It is a moral as well as legal duty of the son or daughter to maintain their aged parents.

🔷 3. Widowed Daughter-in-law – (Section 19)

A widowed daughter-in-law is entitled to claim maintenance from her father-in-law if:

She is unable to maintain herself, and
She has no means of her own, and
She cannot obtain maintenance from her own father or mother, or from her husband’s estate.

🔹 Note: The obligation of the father-in-law exists only if he has means to do so and the widowed daughter-in-law cannot maintain herself.

🔷 4. Dependents – (Section 21 and 22)

The Act also provides maintenance rights to certain “dependents” of a deceased Hindu. These include:

Widowed daughter,
Minor grandchildren,
Widowed daughters-in-law,
Illegitimate children,
Brother, unmarried sister, etc.

✅ Section 22:

The heirs of a deceased Hindu are bound to maintain these dependents out of the estate inherited by them, to the extent of the value of the property they received.

🔍 Important Case Laws:

Kirtikant D. Vadodaria v. State of Gujarat (1996)
➤ The Supreme Court held that a stepmother is not a “parent” under Section 125 CrPC for claiming maintenance, but under HAMA, adoptive and natural parents are included.
Savitaben Somabhai Bhatiya v. State of Gujarat (2005)
➤ Held that a woman not legally wedded cannot claim maintenance under HAMA.

📚 Conclusion:

The Hindu Adoption and Maintenance Act, 1956 recognizes the moral and legal duty of a Hindu to maintain certain close relations who are dependent and incapable of maintaining themselves. By codifying these obligations, the Act ensures social welfare and economic support to vulnerable individuals such as wives, children, aged parents, and widowed daughters-in-law. The provisions under Sections 18 to 22 reflect a significant step toward family responsibility and legal accountability under Hindu personal law.

✅ Q.4. Explain the criteria for determining the amount of maintenance under the Hindu Adoption and Maintenance Act, 1956. Can a person be denied maintenance?
[Long Answer]

📘 Introduction:

The Hindu Adoption and Maintenance Act, 1956 not only provides for the right to maintenance of certain dependents (such as wife, children, parents, widowed daughter-in-law, etc.) but also lays down the criteria for determining the amount of such maintenance. The Act recognizes that maintenance must be reasonable and adequate, considering both the needs of the claimant and the financial capacity of the person liable to pay.

✅ Relevant Provisions:

Section 23: Principles for determining the amount of maintenance.
Section 18(3), 19(2), 20(3): Grounds for denial of maintenance to wife, widowed daughter-in-law, and children/parents respectively.

✅ I. Criteria for Determining the Amount of Maintenance

(Section 23 of HAMA, 1956)

The amount of maintenance is not fixed but is left to the discretion of the court, which considers several factors, such as:

🔷 1. Position and Status of the Parties:

The social status, education, lifestyle, and living standard of both the claimant and the person liable to pay are considered.
For example, if the husband belongs to a wealthy background, the wife may be entitled to a higher amount of maintenance.

🔷 2. Reasonable Wants of the Claimant:

The court will consider what is reasonable and necessary for the claimant’s food, shelter, clothing, education, medical expenses, and other daily needs.

🔷 3. Income and Property of the Claimant:

If the claimant has sufficient income or property, the amount of maintenance may be reduced or denied.
The maintenance is meant only when the claimant is unable to maintain themselves.

🔷 4. Income and Property of the Person Liable:

The court evaluates the earning capacity, assets, employment status, and liabilities of the person from whom maintenance is claimed.
A balance is maintained so that the person liable is not burdened beyond his means.

🔷 5. Number of Dependents Entitled to Maintenance:

If a person has multiple dependents (e.g., wife, children, parents), the maintenance amount is distributed proportionately so that all dependents are reasonably supported.

🔷 6. Customary Practices or Family Traditions (if any):

In some cases, the court may consider customs and usages relevant to the community, especially regarding dowry, family support systems, etc.

🔷 7. Conduct of the Parties:

The conduct, morality, and behavior of the parties may influence the court’s decision.

🔹 Important Case Law:

Bhagwan Dutt v. Kamla Devi (1975)
The Supreme Court held that the husband’s obligation to maintain his wife is not absolute; it must be considered in light of his income, liabilities, and social obligations.

✅ II. Can a Person be Denied Maintenance?

Yes. Under HAMA, maintenance is not an unconditional right. It may be denied or withdrawn under the following circumstances:

🔷 1. Wife – Section 18(3):

A wife is not entitled to maintenance if:

She is unchaste (engaged in adultery),
She converts to a non-Hindu religion (i.e., ceases to be Hindu).

🔷 2. Widowed Daughter-in-law – Section 19(2):

She cannot claim maintenance from her father-in-law if she can support herself from her own income or estate.
Also, if she can claim maintenance from her own parents, she may not be eligible.

🔷 3. Children and Parents – Section 20(3):

Maintenance is denied if:
- The claimant is able to maintain himself/herself.
- The minor child is earning enough to support himself.

🔷 4. General Rule:

If the claimant is guilty of misconduct, such as violence, cruelty, or immoral behavior, courts may reject or reduce maintenance.

✅ Discretion of the Court:

The courts have wide discretion under Section 23 to determine:

Whether maintenance should be granted,
How much should be paid,
In what manner (lump sum or periodic payments),
And for what duration.

📚 Conclusion:

The Hindu Adoption and Maintenance Act, 1956 aims to ensure a just and equitable system for providing financial support to dependents. The amount of maintenance is determined based on multiple factors, including needs, status, and capacity to pay. However, the right to maintenance is not absolute — it may be denied or withdrawn on valid legal grounds, such as unchastity, conversion, or self-sufficiency. The ultimate goal of the law is to provide reasonable sustenance and dignity to those who are entitled to it under Hindu law.

✅ Q.5. Discuss the provisions relating to the Guardianship under the Hindu Minority and Guardianship Act, 1956. Who can be a natural guardian of a minor?
[Long Answer]

📘 Introduction:

The concept of Guardianship under Hindu law deals with the care, custody, and control of minor children and their property. The Hindu Minority and Guardianship Act, 1956 was enacted as a part of the Hindu Code to consolidate and codify the laws relating to guardianship among Hindus. It supplements the provisions of the Guardians and Wards Act, 1890, and aims to safeguard the welfare of Hindu minors.

✅ Definition of Minority and Guardianship (Section 4):

Minor: A person who has not completed the age of 18 years.
Guardian: A person having the care of the person of a minor or of his property or of both.
The Act recognizes three kinds of guardians:
1. Natural Guardian
2. Testamentary Guardian
3. Guardian appointed by the Court

✅ I. Natural Guardian under Hindu Law (Section 6):

A natural guardian is the first and primary guardian of a Hindu minor. Section 6 of the Act lays down who shall be the natural guardian of a minor child:

🔷 (a) For a Legitimate Boy and Unmarried Girl:

Father is the natural guardian.
After the father, the mother is the natural guardian.

🔹 Note: The custody of a minor child below the age of 5 years shall ordinarily be with the mother, even though the father is the natural guardian.

🔷 (b) For a Legitimate Child Who is Adopted:

The rules are the same as above:
- Father first, then mother.

🔷 (c) For an Illegitimate Boy or Illegitimate Unmarried Girl:

Mother is the natural guardian.
After the mother, the father.

🔷 (d) For a Married Minor Girl:

Her husband is considered the natural guardian.

✅ Conditions Where a Parent Cannot Act as Guardian:

According to Section 6, a person shall not be entitled to act as the natural guardian:

If he/she has ceased to be a Hindu, or
If he/she has renounced the world by becoming a hermit (vanaprastha) or sanyasi.

✅ II. Welfare of the Minor is Paramount (Section 13):

Even if a person is legally entitled to be a natural guardian, the welfare of the minor is the paramount consideration. If the court finds that the guardian is not acting in the best interest of the minor, the guardianship can be denied or removed.

🔹 Example: A father involved in criminal activity or domestic violence may be denied custody.

✅ III. Powers of Natural Guardian (Section 8):

A natural guardian is empowered to:

Do all necessary acts for the benefit of the minor and his property.
However, some acts require prior permission of the court, such as:
- Mortgage,
- Sale,
- Gift or lease of minor’s immovable property for more than 5 years or beyond the child attaining majority.

🔹 Case Law:
Manik Chandra v. Ramchandra (1981) – The Supreme Court held that any transaction of a minor’s property by the guardian without prior permission of the court is voidable.

✅ IV. Testamentary Guardians (Section 9):

A father who is a natural guardian may appoint a guardian by will for his minor legitimate children.
After the death of the father, the mother can also appoint a testamentary guardian.
For illegitimate children, only the mother has the right to appoint a testamentary guardian.

✅ V. De Facto Guardian and Guardian by Affinity:

🔷 1. De Facto Guardian:

A person who assumes the custody of a minor without legal authority.
Section 11 of the Act abolishes the concept of de facto guardians and declares that they cannot deal with the minor’s property.

🔷 2. Guardian by Affinity:

Traditionally, the husband of a minor widow (or father-in-law) was considered her guardian.
This concept is not recognized under the 1956 Act.

✅ VI. Guardians Appointed by Court:

When no natural or testamentary guardian is available or suitable, the court (under Guardians and Wards Act, 1890) can appoint a guardian in the best interest of the minor.

🔍 Important Case Laws:

Githa Hariharan v. Reserve Bank of India (1999)
➤ The Supreme Court held that the word “after” in Section 6(a) does not mean “after the death of the father” but “in the absence or incapacity of the father”, the mother can also act as a natural guardian.
Rosy Jacob v. Jacob A. Chakramakkal (1973)
➤ Welfare of the child is the paramount consideration in deciding custody and guardianship matters.

📚 Conclusion:

The Hindu Minority and Guardianship Act, 1956 aims to protect the personal and property interests of Hindu minors by clearly defining who can be a guardian and what their powers and duties are. The law gives primacy to the welfare of the child, ensuring that no legal right to guardianship can override the child’s best interests. The Act provides a well-structured system of natural, testamentary, and court-appointed guardians, while abolishing outdated concepts like de facto guardianship.

✅ Q.6. What are the powers and limitations of a guardian under the Hindu Minority and Guardianship Act, 1956 regarding the property of a minor?
[Long Answer]

Under the Hindu Minority and Guardianship Act, 1956, provisions have been made to regulate the powers and duties of guardians in relation to the property of a Hindu minor. A guardian is expected to act in the best interest of the minor and to protect and preserve the minor’s estate. However, certain limitations have also been placed to prevent misuse.

📘 Relevant Provisions:

Section 8 of the Hindu Minority and Guardianship Act, 1956 deals with the powers of a natural guardian.
Section 6 and Section 7 define who can be a natural guardian.
Section 12 provides restrictions relating to appointment of guardians if the minor has a guardian appointed by the Court.

🔹 I. Powers of Natural Guardian [Section 8(1)]:

The natural guardian is empowered to do all acts which are necessary, reasonable, and proper for:

The benefit of the minor,
The maintenance and protection of the minor’s estate,
The education and upbringing of the minor.

🔸 II. Restrictions on Powers [Section 8(2)]:

The natural guardian cannot, without the prior permission of the Court, undertake the following acts:

Mortgage, sell, gift, exchange, or lease any part of the minor’s immovable property for a term exceeding five years, or for a term extending more than one year beyond the date on which the minor will attain majority.
Transfer of any interest in the immovable property of the minor by any other mode.

🔻 III. Effect of Unauthorized Transfer [Section 8(3)]:

If a natural guardian transfers the minor’s immovable property in contravention of Section 8(1) or 8(2) without court’s permission, such transfer is voidable at the instance of the minor or any person claiming on his behalf.
However, such transaction is not void ab initio, but voidable, meaning it remains valid until challenged.

⚖️ Judicial Interpretations:

Smt. Manibai v. Manikrao, AIR 1969 Bom 256:
- Court held that the transaction made without court permission is voidable at the instance of the minor.
Rama v. Narsingrao, AIR 1979 Bom 209:
- Any disposition of property made without the court’s sanction could be challenged even after the minor attains majority.

⚠️ Limitations on Guardian’s Powers:

A guardian is not allowed to bind the minor in any personal covenant, i.e., the minor cannot be made personally liable.
He/she is a trustee of the minor’s property and must act prudently.
Cannot speculate or invest in risky ventures.
Cannot alienate minor’s property for self-interest.
Must maintain true accounts of the minor’s property.

👪 Court’s Role:

The District Court must be satisfied that the transaction is necessary or clearly advantageous to the minor before granting permission.
The court acts as a watchdog to protect the minor’s interest.

✅ Conclusion:

The Hindu Minority and Guardianship Act, 1956 ensures that the natural guardian’s power over the minor’s property is subject to strict judicial supervision. While they have the duty to act for the welfare of the minor, any significant dealing with the minor’s immovable property requires prior approval of the court. This legal framework is designed to prevent misuse or exploitation of the minor’s property and to safeguard their future rights and interests.

✅ 7. Distinguish between Natural Guardian and Testamentary Guardian. What are their rights and duties under the Hindu Minority and Guardianship Act, 1956?
[Long Answer]

🔹 Introduction:

Under the Hindu Minority and Guardianship Act, 1956, guardianship refers to the legal responsibility entrusted to a person to take care of a minor and/or his property. The Act classifies guardians into different categories, including Natural Guardians and Testamentary Guardians. Both types of guardians play important roles, but their rights, duties, and the mode of appointment are distinct.

🔹 Difference between Natural Guardian and Testamentary Guardian:

Basis	Natural Guardian	Testamentary Guardian
Meaning	A person recognized by law as the natural protector of the minor and his property.	A person appointed through a Will by the natural guardian to act as guardian after his/her death.
Source of authority	Derived from personal laws and the Act.	Derived from the Will of a natural guardian.
Who can be	For boys and unmarried girls: Father, and after him mother. For illegitimate children: Mother, then father. For married girls: Husband.	Only the father can appoint a guardian through Will for legitimate children. The mother can appoint after the death of the father.
When guardianship starts	From birth of the child.	Comes into effect only after the death of the natural guardian.
Court appointment	Not required unless disputed.	Recognized only if court finds it beneficial for the minor.
Revocability	Cannot be revoked by any Will.	Can be revoked or altered by court if not in minor’s welfare.

🔹 Rights and Duties of Natural Guardian:

As per Section 6 and 8 of the Act, a natural guardian has the following rights and responsibilities:

✔ Rights:

Custody and care of the minor’s person and property.
Right to decide education, upbringing, religion, and marriage of the child.
Right to manage movable and immovable property of the minor (with limitations).

✔ Duties and Limitations:

Cannot bind minor’s estate by personal debts.
Cannot sell, mortgage, or gift minor’s immovable property without prior permission of the court.
Must act in the best interest and welfare of the minor.
Must ensure maintenance, education, and health care of the minor.

🔹 Rights and Duties of Testamentary Guardian:

✔ Rights:

Can act as guardian of person or property of the minor, as mentioned in the Will.
Has rights similar to a natural guardian, but must act within the scope of the Will and subject to court’s approval if needed.
Can be appointed for specific purposes like education, marriage, etc.

✔ Duties:

Must act in good faith and in the best interest of the minor.
Cannot act contrary to the welfare of the minor — the welfare principle under Section 13 overrides all.
Can be removed by court if misconduct or inefficiency is found.

🔹 Judicial Interpretations:

In Githa Hariharan v. Reserve Bank of India (1999), the Supreme Court clarified that mother can act as natural guardian even during the lifetime of the father, if the father is indifferent or not acting in child’s welfare.
Courts have reiterated that minor’s welfare is paramount, and even testamentary guardianship is subject to judicial scrutiny.

🔹 Conclusion:

Natural and testamentary guardianship under Hindu Law are important mechanisms to safeguard the interests of minors. While natural guardianship is based on familial ties and law, testamentary guardianship is based on the express wishes of the guardian through a Will. However, in all cases, the welfare of the minor remains the supreme consideration under the Hindu Minority and Guardianship Act, 1956.

✅ 8. Explain the eligibility and procedure for adoption under the Hindu Adoption and Maintenance Act, 1956. What are the conditions to be fulfilled by the person giving and taking in adoption?
(Long Answer)

Introduction:

The Hindu Adoption and Maintenance Act, 1956 (HAMA) codifies the law relating to adoption and maintenance among Hindus. It lays down specific eligibility criteria and procedures for a valid adoption, including who can adopt, who can give in adoption, and who can be adopted.

1. Who can adopt a child? (Section 7 & 8)

(a) In case of a male Hindu (Section 7):

A male Hindu who is:

Of sound mind,
Not a minor, and
Has the capacity to take a child in adoption.

Condition: If he has a living wife, her consent is mandatory, unless she is:

Of unsound mind,
Has renounced the world, or
Has ceased to be a Hindu.

(b) In case of a female Hindu (Section 8):

A female Hindu who is:

Of sound mind,
Not a minor, and
Unmarried, or if married—
- Her husband is dead,
- Has renounced the world,
- Has converted, or
- Is of unsound mind.

2. Who can give a child in adoption? (Section 9)

Only certain persons are legally entitled to give a child in adoption:

The father: With the consent of the mother (unless she is disqualified).
The mother: If the father is dead, has renounced the world, converted, or is of unsound mind.
The guardian: With the permission of the court, if both parents are dead or incapable.

3. Who can be adopted? (Section 10)

A child (boy or girl) can be adopted if:

He or she is a Hindu,
Has not already been adopted,
Is unmarried, unless custom permits adoption of a married child,
Is under the age of 15, unless custom allows otherwise.

4. Other essential conditions (Section 11)

Some additional conditions to be satisfied for a valid adoption:

The adoptive parent must not have a child of the same sex already living (in case of adopting a son, must not have a living son, son’s son, or son’s son’s son).
The adoptive mother or father must be at least 21 years older than the girl to be adopted.
There must be an actual giving and taking of the child.
The adoption must be for a lawful purpose, and not just symbolic.

5. Procedure of Adoption:

Though the Act does not prescribe a specific form, the ceremony of actual giving and taking must be performed, signifying the intention to transfer the child from the biological to the adoptive family.

A registered adoption deed or legal declaration is advisable as documentary proof of adoption.

Conclusion:

The Hindu Adoption and Maintenance Act, 1956, ensures that adoption is not done arbitrarily and protects the rights of the adoptive child, adoptive parents, and natural parents. Compliance with the prescribed conditions is crucial to give the adoption legal validity, enabling the child to enjoy full rights in the adoptive family, including succession and maintenance.