Q: Elaborate section 11 of Hindu Adoptions and Maintenance Act, 1956 ?

Ans: Section 11 in The Hindu Adoptions and Maintenance Act, 1956

11 Other conditions for a valid adoption. —In every adoption, the following conditions must be complied with:—

(i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made 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;

(ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption) living at the time of adoption;

(iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at least twenty-one years older than the person to be adopted;

(iv) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty-one years older than the person to be adopted;

(v) the same child may not be adopted simultaneously by two or more persons;

(vi) the child to be adopted 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 its birth 1 [or in the case of an abandoned child or child whose parentage is not known, from the place or family where it has been brought up] to the family of its adoption:

Provided that the performance of datta homam shall not be essential to the validity of adoption.

(i) Provision of section 11 requiring age difference between adoptive mother and adoptive son to be at least 21 years is mandatory in nature. Word ‘must' cannot be read as ‘may'. This breach is fatal to adoption; Hanmant Laxman Salunke (D) by L.Rs. v. Shrirang Narayan Kanse, AIR 2006 Bom 123.

(ii) The defendant's father only wanted that he should be reared up by Sankar and Sasi after the mother's death and there had been no formal ceremony of adoption nor were Sankar and Sasi unfit to have children of their own, thereby negativing the adoption; Urmila Devi v. Hemanta Kumar Mohanta, AIR 1993 Ori 213.

(iii) The age of the plaintiff was 30 years and that of the adoptive mother 48 years six months, thereby contravening the provisions of section 11(iv) as the difference between the plaintiff and mother was only 19 years and not 21 years; Nemichand Shantilal Patni v. Basantabai, AIR 1994 Bom 235.

(iv) There was no evidence in hand that the plaintiff was actually given and taken in adoption by the parents or guardians of the plaintiff as required under section 11(vi). Adoption was held not to have taken place; Nemichand Shantilal Patni v. Basantabai, AIR 1994.