Adoption under the Hindu Adoptions and Maintenance Act
The Hindu Adoptions and Maintenance Act, 1956 (HAMA) is the personal-law route for adoption among Hindus. Sections 5 to 16 set out the requisites — capacity to take, capacity to give, capacity of the child, the giving-and-taking ceremony, and the vesting consequences under Section 12. The Juvenile Justice (Care and Protection of Children) Act, 2015 adds a secular pan-India route through the Central Adoption Resource Authority (CARA) for orphaned, abandoned and surrendered children. The Bombay High Court in Re: Adoption of Payal @ Sharinee Vinay Pathak, 2010 (1) Bom CR 434 and the Supreme Court in Shabnam Hashmi v Union of India, (2014) 4 SCC 1 settled that the JJ Act route is available across community lines, lifting the same-sex-child bar under Section 11(i)–(ii) HAMA where the child is orphaned, abandoned or surrendered. This guide traces both routes.
Adoption in Indian law is older than the statute. The classical Hindu institution was both religious and proprietary — a son was necessary to discharge a man's debts to his ancestors and to perpetuate his lineage; the dattaka form of adoption supplied that son where natural birth had failed. The Hindu Adoptions and Maintenance Act, 1956 secularised the institution. The Supreme Court in Lakshman Singh Kothari v Smt Rup Kanwar, AIR 1961 SC 1378 read the statute as a complete code — only those adoptions that comply with Sections 5 to 11 are valid; datta homa and other religious ceremonies, while permissible, are no longer essential; the only indispensable ceremony is the act of giving and taking the child. Sawan Ram v Kalawanti, AIR 1967 SC 1761 worked out the relation-back doctrine in modified form for widow-adoption cases. The Juvenile Justice (Care and Protection of Children) Act, 2015 — successor to the Acts of 2000 and 1986 — adds a parallel secular route under CARA, available to all communities and to single applicants, that the Bombay High Court and the Supreme Court have construed to override the same-sex-child bar in HAMA Section 11 where the child is orphaned, abandoned or surrendered. The two regimes coexist as supplements, not alternatives.
The statutory framework — HAMA, 1956
Section 4 of the Hindu Adoptions and Maintenance Act, 1956 gives the statute overriding effect — any text, rule or interpretation of Hindu law, or any custom or usage having force of law, ceases to have effect with respect to any matter for which provision is made in the Act. Section 5(1) is the operative gate: "no adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provisions shall be void." A void adoption creates no rights in the adoptive family and severs no ties in the family of birth.
Section 6 sets out the four cumulative requisites of a valid adoption — the person adopting has the capacity and the right to take in adoption; the person giving in adoption has the capacity to give; the person adopted is capable of being taken in adoption; and the other conditions in Section 11 are complied with. The section is mandatory; non-compliance with any of the four renders the adoption void ab initio, not voidable. The doctrine of factum valet — that what should not have been done is nevertheless validated by the fact of its being done — has no application to a defect in an essential condition.
Capacity to take — Sections 7 and 8
Section 7 governs the capacity of a Hindu male to take in adoption. Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or daughter in adoption. The proviso is decisive — if he has a wife living, he cannot adopt except with the consent of his wife, unless the wife has completely and finally renounced the world, has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind. Where a male Hindu has more than one wife living (a marriage that pre-dates the Hindu Marriage Act, 1955), the consent of all wives is necessary. The consent must be free — not procured by force, fraud or undue influence — and must extend to the particular child and not merely to the abstract act of adoption.
Section 8 confers the corresponding capacity on a Hindu female. Any female Hindu who is of sound mind and is not a minor has the capacity to take a son or daughter in adoption — provided she is not married, or if married, that her marriage has been dissolved, or that her husband is dead, has completely and finally renounced the world, has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind. The Section 8 framework as enacted in 1956 carried a striking asymmetry — a married woman, even with her husband's consent, could not adopt in her own right; only the husband could adopt, with her consent. The Personal Laws (Amendment) Act, 2010 amended Section 8 to remove the absolute disability of a married woman, but the statutory architecture continues to channel a married Hindu's adoption through the husband as the principal actor with the wife's consent under Section 7.
The Supreme Court in Brajendra Singh v State of M.P., (2008) 13 SCC 161 illustrated the strictness of Section 8. A crippled woman had been abandoned by her husband on the day after marriage; she lived with her parents for twenty-two years; she described herself as a divorcee for all practical purposes and adopted a son in 1970. The Court held the adoption invalid — the marriage subsisted in law (no decree of dissolution had been obtained), the husband was alive, none of the disqualifying conditions under Section 8 was present, and the appellant therefore lacked capacity to adopt in her own right. The lesson is that the Section 8 categories are technical: factual abandonment is not legal dissolution.
Capacity to give — Section 9
Section 9 enumerates the persons capable of giving a child in adoption. Sub-section (2) confers the primary power on the father, exercisable only with the consent of the mother — the consent dispensable only where the mother has completely and finally renounced the world, has ceased to be a Hindu, or has been declared to be of unsound mind. Sub-section (3) confers the corresponding power on the mother, exercisable where the father is dead, has finally renounced the world, has ceased to be a Hindu, or has been declared of unsound mind. Sub-section (4) confers a residual power on the guardian — empowered to give the child in adoption with the previous permission of the court — where both father and mother are dead, have renounced the world, have abandoned the child, have been declared of unsound mind, or where the parentage of the child is not known. The 1962 amendment expanded "guardian" in this context to include both the de jure and the de facto guardian; an orphanage manager, a person who has brought up the child, or a person in whose care the child is, can give the child in adoption with the court's leave.
The court, before granting leave under Section 9(4), must satisfy itself that the adoption will be for the welfare of the child — having due regard to the wishes of the child considered against age and understanding — and that the applicant has not received, and has not agreed to receive, any payment in consideration of the adoption (other than such payment as the court may sanction).
Capacity of the child — Section 10
The qualifications of the child under Section 10 are four. The child must be a Hindu. The child must not have been already adopted. The child must not have been married, unless there is a custom or usage applicable to the parties permitting the adoption of a married person. The child must not have completed the age of fifteen years, unless there is a custom or usage permitting the adoption of a person over fifteen. The custom-based exceptions in clauses (iii) and (iv) preserve community practice — among Jats in Punjab and Haryana, the Bombay-School communities of Western India, and certain Lingayat and Anand Karaj groupings — where adoption of a married person or a person above fifteen has historically been recognised. Custom must be pleaded and proved unless the court can take judicial notice of it.
Other conditions — Section 11
Section 11 contains six cumulative conditions. Clauses (i) and (ii) impose the same-sex-child bar — if the adoption is of a son, the adoptive father or mother must not have a Hindu son, son's son or son's son's son (whether by legitimate blood relationship or by adoption) living at the time of adoption; if the adoption is of a daughter, the adoptive father or mother must not have a Hindu daughter or son's daughter living at the time of adoption. Clauses (iii) and (iv) impose the age-gap requirement — where the adoptive father adopts a daughter, he must be at least twenty-one years older than the adoptee; where the adoptive mother adopts a son, she must be at least twenty-one years older. The age gap is jurisdictional; violation renders the adoption void. Clause (v) prohibits simultaneous adoption of the same child by two or more persons. Clause (vi) prescribes the only essential ceremony — the child must be actually given and taken in adoption by the parents or guardian concerned (or under their authority) with intent to transfer the child from the family of birth to the family of adoption.
The Supreme Court in Lakshman Singh Kothari v Smt Rup Kanwar, AIR 1961 SC 1378 held that the physical act of giving and taking, with intent to transfer the child from one family to another, is an essential part of a valid adoption; datta homa and other religious ceremonies, while not prohibited, are not essential and cannot cure the absence of an actual giving and taking. The point is fact-specific — a document acknowledging adoption is evidence of an act of giving and taking but does not itself constitute the act. The burden of proving the giving and taking lies on the person asserting the adoption.
The effect of adoption — Section 12
Section 12 sets out the legal fiction at the heart of HAMA. An adopted child is deemed to be the child of the adoptive parents "for all purposes" with effect from the date of adoption, and from such date all ties of the child in the family of birth are severed and replaced by those created by adoption in the adoptive family. Three provisos qualify the rule. Proviso (a) preserves the marriage prohibitions — the adopted child cannot marry any person whom he or she could not have married if continuing in the family of birth; for the purpose of the prohibited-degrees and sapinda rules under Section 5(iv) and (v) of the Hindu Marriage Act, 1955, blood relationship in the birth family continues. Proviso (b) preserves property vested in the child before adoption — property inherited from a relative in the family of birth continues to vest in the adopted child, subject to any obligation attached to such property. Proviso (c) is the critical vesting rule — "the adopted child shall not divest any person of any estate which vested in him or her before the adoption". The doctrine of relation back, under which a widow's adoption would divest collateral heirs by treating the adopted son as if born during the deceased husband's lifetime, is thereby curtailed.
Sawan Ram v Kalawanti, AIR 1967 SC 1761 worked out the residual operation of relation back in the widow-adoption context. Where the widow's adoption does not divest any vested estate, the adopted child is related back to the deceased husband and is treated as a coparcener in the husband's family; Sita Bai v Ramchandra applied the same proposition where the adoption made the adopted son a coparcener with the surviving brother and gave the adopted son the whole of the coparcenary property after the surviving brother's death. The proposition does not survive where Section 14 of the Hindu Succession Act, 1956 has matured the widow's limited ownership into absolute ownership before the adoption — there is then "vested" property in the widow's hands that the adopted son cannot divest.
The succession consequences of Section 12 are far-reaching. An adopted child becomes a Class I heir of the adoptive father under Schedule I of the Hindu Succession Act, 1956 read with Section 8. The adopted child inherits equally with a natural-born child, takes by survivorship in a Mitakshara coparcenary into which the adoption brings the child, and has full rights of partition. The Karnataka High Court — and other High Courts — have held that an adopted son acquires the caste of the adoptive family for the purposes of Article 15(4) and 16(4) reservations; the Supreme Court has cautioned, however, that where a child is adopted in late teens after substantive social advantage has accrued from upbringing in a more privileged community, the constitutional reservation benefit may not follow.
Section 14 — relationship with the spouse; Section 15 — irrevocability; Section 16 — presumption
Section 14 maps the relational consequences of the adoption with the spouse of the adopter. Where a married Hindu male adopts with the wife's consent, the wife becomes the adoptive mother; where he has more than one wife, the senior in marriage is the adoptive mother and the others are step-mothers. Where a widower or bachelor adopts and subsequently marries, the new wife is the step-mother of the adopted child. Where a widow or spinster adopts and subsequently marries, the new husband is the step-father. Section 15 makes a valid adoption irrevocable — neither the adoptive father or mother, nor any other person, nor the adoptee, can cancel a valid adoption. Section 16 is the evidentiary provision — a document recording an adoption purporting to be signed by the giver and taker, and registered under any law in force at the time, raises a presumption that the adoption has been made in compliance with the Act, until the contrary is proved.
The JJ Act overlay — Sections 56 to 65
The Juvenile Justice (Care and Protection of Children) Act, 2015 — replacing the Acts of 2000 and 1986 — supplies a secular pan-India adoption regime. Section 2(2) defines adoption as the process through which the adopted child is permanently separated from the biological parents and becomes the legitimate child of the adoptive parents with all the rights, privileges and responsibilities attached to a biological child. Section 56 governs the source of children for adoption — orphaned, abandoned or surrendered children declared legally free for adoption by the Child Welfare Committee. Section 56(3) is the bridge — "nothing in this Act shall apply to the adoption of children made under the provisions of the Hindu Adoptions and Maintenance Act, 1956". The provision preserves HAMA as a parallel personal-law route; it does not foreclose the JJ Act route to a Hindu prospective adoptive parent who chooses it.
Section 57 sets out the eligibility of prospective adoptive parents. The composite physical, emotional, mental and financial capability to provide a good upbringing is the touchstone; consent of both spouses is mandatory for a couple application; a single individual may adopt subject to the regulations made by CARA. Section 58 governs intra-country procedures; Section 59 governs inter-country adoption — applicable to foreign-resident applicants, NRIs and OCIs — operationalising the Hague Convention on Inter-Country Adoption, 1993 to which India has acceded since 2003. Section 60 deals with the procedure for adoption of a child by foreign-resident NRI/OCI/foreign applicants. Section 61 governs the court procedure — the application is filed in the district court (or Family Court where established) within sixty days of the prospective adoptive parents accepting the child's referral. The court is to dispose of the application within two months. Section 62 mirrors Section 12 HAMA — the adopted child becomes the legitimate child of the adoptive parents with all rights and entitlements. Section 63 mandates post-adoption follow-up. Section 64 establishes the Central Adoption Resource Authority (CARA) as the statutory body to regulate and monitor adoption. Section 65 empowers CARA to frame the Adoption Regulations — the current iteration being the Adoption Regulations, 2022.
The CARA pipeline runs through the CARINGS portal — Child Adoption Resource Information and Guidance System — on which prospective adoptive parents register, undergo home-study by a State Adoption Resource Agency (SARA) or a Specialised Adoption Agency (SAA), receive child referrals based on seniority and matching criteria, accept or decline within a stipulated period, and file the court application under Section 61. The procedural discipline is intended to eliminate the malpractices that the Supreme Court in Laxmi Kant Pandey v Union of India, AIR 1984 SC 469 had identified in the unregulated inter-country adoption practice of the 1970s and early 1980s.
Cross-community adoption — the Payal Sharinee and Shabnam Hashmi line
The relationship between HAMA and the JJ Act produced a doctrinal question on which the Bombay High Court and the Supreme Court have now settled the position. The Bombay High Court in Re: Adoption of Payal @ Sharinee Vinay Pathak, 2010 (1) Bom CR 434 considered whether a Hindu couple, already with a biological daughter, could adopt a second daughter under the Juvenile Justice (Care and Protection of Children) Act, 2000 (the predecessor of the 2015 Act) notwithstanding the bar in Section 11(ii) of HAMA — the same-sex-child prohibition. Justice D Y Chandrachud (as he then was) read the two statutes as harmoniously operating: HAMA governs Hindu adoption generally; the JJ Act is a special and beneficent enactment for a narrow sub-class of children — orphaned, abandoned or surrendered. Where the child to be adopted falls within Chapter IV of the JJ Act, the special and later statute prevails over the general personal-law restriction; the embargo in Section 11(i) and (ii) of HAMA is lifted to the extent of the JJ Act overlay. The judgment ran on two parallel ratios — harmonious construction as the primary holding and implied amendment by the later special statute as the alternative.
The Supreme Court in Shabnam Hashmi v Union of India, (2014) 4 SCC 1 followed and extended Payal Sharinee across community lines. The petitioner, a Muslim woman, sought a declaration that the right to adopt under the JJ Act was available to all citizens irrespective of personal-law restrictions on adoption. The Supreme Court held that the JJ Act is a secular enactment that provides an enabling adoption route open to all communities; a prospective adoptive parent from a community whose personal law does not recognise adoption (Muslim, Parsi, Christian) is entitled to invoke the JJ Act and to adopt thereunder. The Court declined to declare adoption a fundamental right under Article 21 — the right is statutory, not constitutional — but affirmed that the statutory entitlement under the JJ Act operates across the personal-law spectrum. The combined effect of Payal Sharinee and Shabnam Hashmi is that the JJ Act adoption route is available to every Hindu, Muslim, Christian, Parsi and non-religious applicant, subject to compliance with the CARA pipeline and the eligibility criteria in Section 57 of the JJ Act.
The procedural execution — HAMA adoption
An adoption under HAMA does not require court intervention. The Supreme Court has consistently held that HAMA adoption is an act inter partes between the giver and the taker, validated by the giving-and-taking ceremony with intent to transfer. The recommended documentary discipline is a written deed of adoption — signed by both the giver and the taker, executed contemporaneously with the ceremony, and registered under the Registration Act, 1908. Registration of the deed is not mandatory for validity, but Section 16 HAMA raises a presumption of regular adoption from a registered deed; the burden on the person challenging the adoption thereafter is heavy. State-level adoption registration regimes — Maharashtra, Karnataka, and several others — provide for administrative registration that supplements the Registration Act discipline. After the adoption, the birth-certificate amendment is typically sought from the municipal Registrar of Births and Deaths under the Registration of Births and Deaths Act, 1969.
The HAMA route is open only between Hindus — the taker, the giver, and the child must all be Hindus within the meaning of Section 2 of the Hindu Marriage Act, 1955. Where the child is an orphaned, abandoned or surrendered child whose religion cannot be ascertained, the child is treated as a Hindu under Section 10 read with the explanation. The HAMA route does not require home-study, CARA referral, or post-adoption follow-up; the JJ Act discipline applies only where the parties opt for the JJ Act route.
The procedural execution — JJ Act adoption
The JJ Act pipeline begins with registration of the prospective adoptive parents on the CARINGS portal. The SARA or SAA conducts the home-study report under Regulation 7 of the Adoption Regulations, 2022; the home-study has a validity of three years. The child referral follows under Regulation 9, drawing on the seniority of registration and matching criteria — age, medical condition, sibling preference where applicable. The prospective adoptive parents accept or reject the referral within a stipulated time; on acceptance the child is placed with the family in pre-adoption foster care. The Section 61 court application — filed in the district court or Family Court within sixty days — annexes the home-study report, the medical report of the child, the order of the Child Welfare Committee declaring the child legally free for adoption, the seniority status of the parents on CARINGS, and the consent of the SAA. The court orders the adoption under Section 61(3) and post-adoption follow-up runs for two years through the SAA reports to CARA.
Inter-country adoption under Sections 59 and 60 adds the additional layer of the Hague Convention compliance — the Authorised Foreign Adoption Agency (AFAA) sponsorship in the receiving country, the No-Objection Certificate (NOC) from CARA, the country-of-origin recognition of the adoption decree, and the immigration and citizenship documentation for the child to travel to the receiving country.
When HAMA is the wrong route — and when the JJ Act is
The choice between HAMA and the JJ Act turns on the facts. HAMA is the appropriate route where both the giver and the taker are Hindu, the child has known and consenting biological parents (or a known guardian), and the adoption is consensual and intra-community. The HAMA route is faster, less paperwork-intensive, and does not require a court order — the adoption is complete on the giving-and-taking ceremony.
The JJ Act is the appropriate route where the child is orphaned, abandoned or surrendered — that is, where there is no identifiable biological parent who can validly give the child in adoption. The JJ Act is also the appropriate route — and now the only route — for any prospective adoptive parent from a community whose personal law does not recognise adoption (Muslim, Christian, Parsi). The Payal Sharinee and Shabnam Hashmi line further opens the JJ Act to Hindu prospective adoptive parents who would face the same-sex-child bar under Section 11(i)–(ii) of HAMA — a Hindu couple with one daughter who wish to adopt a second daughter can proceed under the JJ Act provided the child to be adopted is orphaned, abandoned or surrendered.
The two routes are mutually exclusive in respect of any given child — an adoption either is under HAMA or is under the JJ Act, not both. The procedural and substantive consequences are largely the same — Section 12 HAMA and Section 63 of the JJ Act produce the same effect of full legitimisation in the adoptive family — but the regulatory pipeline, the choice of forum, and the documentary discipline are distinct.
What remains open
Three doctrinal questions sit on top of the adoption framework as it stands in 2026.
The first is the parity of the single Hindu female adopter under Section 8 HAMA with the single applicant under Section 57 of the JJ Act. Section 8 HAMA, even after the 2010 amendment, requires the female Hindu to be unmarried, divorced, widowed or to have a husband under one of the four disqualifications. A married Hindu female with the consent of her husband cannot adopt in her own right under HAMA — she can be the adoptive mother only through her husband's Section 7 adoption. The JJ Act regime under Section 57 is gender-neutral as between spouses and permits a single individual to adopt subject to CARA regulations. The asymmetry is unresolved; Sandhya v Union of India upheld the constitutional validity of the HAMA gender architecture on the ground that personal law is not "law" within Article 13, but the line has been substantially eroded by Shayara Bano v Union of India, (2017) 9 SCC 1 and the gradual penetration of constitutional review into personal-law statutes.
The second is the position of same-sex couples under the adoption regime. The Supreme Court in Supriyo v Union of India, (2023) — the same-sex marriage equality reference — held that the existing matrimonial statutes do not, by reading-in, accommodate same-sex marriage; the Court further held, by a four-to-one majority, that the existing adoption framework under the JJ Act and HAMA does not, by reading-in, accommodate joint adoption by a same-sex couple. CARA's Regulation 5(3) — which restricts joint adoption to a "stable marital relationship" — was upheld; the constitutional challenge was dismissed. A single member of a same-sex couple may still adopt as a single applicant under Section 57 JJ Act, but the joint adoption route remains closed pending legislative action.
The third is the cross-community application of HAMA's vesting rule in mixed-religion families. Where a Hindu spouse and a non-Hindu spouse jointly adopt under the JJ Act, the Section 12 HAMA vesting rule does not strictly apply — the JJ Act's Section 63 supplies the legitimisation. But the consequences in the Hindu spouse's family — coparcenary rights, succession under the Hindu Succession Act, 1956 — depend on whether the adopted child is "Hindu" for the purposes of Section 2 of the Hindu Marriage Act, 1955. The position is not finally settled; the Karnataka and Bombay High Courts have applied the Hindu Succession Act benefits liberally where the adoptive father is Hindu, but the question has not reached the Supreme Court.
Adoption has done significant constitutional work since 1956. What began as a personal-law institution for the perpetuation of the Hindu male line has, through HAMA's secularisation, the JJ Act's pan-India overlay, and the Payal Sharinee–Shabnam Hashmi line, become a broadly available statutory route for the rehabilitation of orphaned, abandoned and surrendered children, irrespective of community. What it has not yet become is a constitutional right — the Supreme Court has consistently described adoption as a statutory entitlement, not a fundamental right under Article 21; the legislative architecture continues to police the entry points.