Essentials of a valid adoption:
The most important and essential ceremonies in adoption among the three regenerate classes, that is, the Brahmans, the Kshatriyas and the Vaishyas, are the following:
ADVERTISEMENTS:
(1) The actual physical giving and receiving of the boy,
(2) DuttaHomam.
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Physical act of giving and receiving:
The physical act of giving and receiving of the boy is essential to the validity of an adoption. The ceremony is essential even in case of Sudras. It is of the essence of adoption and the law does not accept any substitute for it. Mere expression of consent or the execution of a deed of adoption though registered but not accompanied by an actual delivery of the boy, does not operate as a valid adoption.
ADVERTISEMENTS:
(Sasinath v. Krishnasunderi, (1881) 7 I.A. 850]. In this case there was no physical giving and taking but there was a registered deed or giving and acceptance. The P.C. held that this’ was not sufficient. There must be physical delivery and acceptance of the boy.
For a valid adoption, the physical act of giving and taking is an essential requisite, a ceremony imperative in all adoptions, whatever the case. And this requisite is satisfied in its essence only by the actual delivery and acceptance of the boy, even though there exists an expression of consent or an executed deed of adoption.
In some cases, to complete the adoption a “datta ho- mam” has been considered necessary, but in the case of the twice born classes no such ceremony is needed if the adopted boy belongs to the same gotra as the adoptive father. (Madusudan Das v.v.Narayani Bai, A.I.R. 1983 SC 114).
The ceremony of giving and taking is indispensable in modern Hindu Law. (Kartar Singh v. Sarjan Singh, A.I.R. 1974 SC 2161).
ADVERTISEMENTS:
It is now well settled that for a valid adoption amongst Jains, no authority, express or implied is necessary for a widow of a sonless man making an adoption to him and that the only essential ceremony for the validity of the adoption is the giving and taking of the adopted son. (Govind Ram v. Ramgopal, A.I.R 1984 M.P. 136).
To constitute giving and taking an adoption all that is necessary is that there should be some overt act to signify the delivery of the boy from one family to another.
Datta Homam:
Datta Homam ceremony is not essential in the case of Sudras. It is not necessary under the customary law of the Punjab. It is not necessary amongst the Jains. It is not necessary even amongst the twice born class if the adopted and the adoptee are of the same qotra. There is a conflict of opinion whether in other cases Datta Homam is necessary. The Calcutta High Court says that it is necessary in the three superior castes.
The Bombay High Court says that it is essential in the Brah- mans only. The Madras High Court says that it may be performed even after the death of the natural father or the adapter, i.e., it is not necessary that Datta Homam should be performed at the time of adoption; it may be performed even afterwards.
The controversy now has been set at rest by Section 1 of the Hindu Adoptions and Maintenance Act which says that the performance of Datta Homam shall not be essential to the validity of an adoption.
The ceremony of Datta homam may be performed by the parties who give and receive the boy in adoption, or the performance thereof may be delegated by them to others.
Every valid adoption implies the free consent to the adoption of the person giving and the person receiving in adoption and also it seems, of the person adopted, if he is a major at the date of adoption. Where the consent to an adoption is obtained by misrepresentation, coercion, fraud, undue influence or mistake, the consent is not free and the adoption is voidable at the option of the party whose consent was so obtained. But, it may be ratified by such party, provided the ratification does not prejudice the right of other persons.
An adoption is not invalid merely because the person giving in adoption receives a consideration for the adoption from the person taking in adoption, though the promise to pay cannot be enforced in law.
