Introduction

Adoption is a process where a child is moved from their birth family to a new family, gaining new rights, responsibilities, and status, and severing all connections with the original family. Under the old uncodified Hindu law, the "doctrine of relation back" applied, meaning that if a widow adopted a son, the son would inherit the estate of the deceased husband as if he had been adopted at the time of the husband's death. However, the Hindu Adoptions and Maintenance Act (HAMA) of 1956 abolished this doctrine. 

Adoption: The Concept

Adoption under Old Hindu Law

In ancient Hindu society, the desire for a son was driven by the need to continue the family line, carry the father's name, and perform religious rites. Texts by ancient authors like Manu and Veda emphasized the necessity of having a child, though the concept of an adopted son emerged later in Sanskrit literature. Manu described an adopted son as one given by his parents in times of distress, known as a Dattaka son.

There were twelve types of sons in ancient Hindu texts, including legitimate, illegitimate, and adopted sons. The main purpose of adopting a son was to fulfill religious duties.

Adoption under Modern Hindu Law

Modern statutory law has codified and updated the old adoption laws. Now, all Hindu adoptions must comply with the provisions of the Act, which has introduced several changes. Women are now allowed to adopt, and the ceremony of Datta-Homam is no longer required. The adopter and adoptee no longer need to be of the same caste; both must simply be Hindu. A divorced, widowed, unmarried woman, or a wife with her husband's consent can legally adopt, provided there is a 21-year age gap between the adopter and adoptee of the opposite sex. The adoptee must be under 15 years old unless tradition dictates otherwise.

A married Hindu man requires his wife's permission to adopt. One significant change is that the doctrine of relation back has been abolished, meaning the adopted child now becomes part of the adoptive family only from the date of adoption.

Adoption by a Widow

Under HAMA, 1956, a Hindu widow can adopt a son or daughter if she is of sound mind and not a minor. She cannot adopt if she already has a living Hindu son, grandson, or great-grandson. When adopting a daughter, she must not have a living Hindu daughter or granddaughter. There must be a 21-year age gap between the widow and the adopted son.

Previously, a widow needed her husband's consent to adopt, but HAMA removed this requirement. Even so, a child adopted by a widow is considered the son of her deceased husband. If there is more than one widow, a single widow can adopt without the others' consent. The nearest sapinda's consent is still required to ensure the adoption's advisability.

Doctrine of Relation Back: Meaning

The doctrine of relation back in old Hindu law allowed a son adopted by a widow to be considered as having been adopted at the time of the husband's death, entitling him to the deceased's estate. This doctrine countered the rule that property once vested cannot be divested. The doctrine ensured continuity of the adoptive father's lineage.

However, this principle only applied to claims concerning the adoptive father's property. If the estate had already been inherited and the inheritor died before the adoption, the adopted son could not claim those properties. The doctrine did not apply in cases where alienation was made by a female heir before the adoption.

Doctrine of Relation Back Under Modern Law

Section 12 of HAMA has abrogated the doctrine of relation back for the purpose of vesting and divesting property. The adopted child now joins the adoptive family from the date of actual adoption, not from the deceased adoptive father's death.

Effect of Adoption: Statutory Provision

Section 12 of HAMA stipulates that an adopted child becomes the adoptive parents' child from the date of adoption, severing ties with the birth family. The adopted child cannot marry someone they couldn't have married in their birth family and retains property vested before adoption, without divesting others of their estates.

Judicial Interpretation

In Vasant v. Dattu, the Supreme Court clarified that section 12 does not prevent an adopted child from claiming their share in the adoptive family, as it does not divest any property vested before adoption. In *Sawan v. Kalawanti*, the Court ruled that a widow's adopted son relates to the deceased husband, bringing continuity to the family and replacing the child’s ties with the birth family.

Conclusion

HAMA corrected some issues in adoption law, ensuring that a widow's adopted son relates to her deceased husband, thereby joining the family and replacing ties with the birth family. However, the adopted child cannot divest any pre-adoption estate, maintaining the doctrine's core principle without reviving it fully.

References:-

1.Herbert Cowell, The Hindu Law.
2.Pedda Amani v. Zemindar of Marungpuri, (1874) 1 I.A. 282, 293 (India)
3.The Hindu Adoptions and Maintenance Act, 1956
4.Tahsil Naidu v.Kulla Naidu, A.I.R. 1970 S.C. 1673
5.Sawan Ram v. Kalawanti, A.I.R. 1967 S.C. 1761.
6.Vijayalakshmamma v. B.T.Shankar, A.I.R. 2001 S.C. 1424 (India).
7.Tahsil Naidu & Anr vs Kulla Naidu & Ors, A.I.R. 1970 S.C 1673 (India).
8.Krishnamurthi v. Dhruvaraj, A.I.R. 1962 S.C. 59.
9.Kesarbai v. State of Maharashtra, A.I.R. 1981 Bom. 115 (India).
10.A.I.R. 1987 S.C. 398.
11.Dinaji v. Daddi & ors, A.I.R. 1990 S.C. 1153.
12.1979 AIR SC 993
13.1967 AIR 1786
14.1977 AIR SC 1944

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