Person Who May Be Adopted (Section 10)

Section 10 of the Hindu Adoptions and Maintenance Act, 1956 (HAMA) fixes the capacity of the person to be adopted; Section 11 layers the substantive conditions that the adoption itself must satisfy. Together, these two sections answer one focused question: which child can validly be transplanted from the family of birth to the family of adoption, and on what additional terms? The Act discards the elaborate disqualifications of the old shastric law and replaces them with a small, clipped list — Hindu, not already adopted, unmarried, under fifteen — qualified by a narrow custom-or-usage saving. Section 11 then adds the structural conditions: no Hindu son or daughter already in the adoptive family, a 21-year age gap when the adopter and adoptee are of opposite sex, no simultaneous double adoption, and the actual ceremony of giving and taking.

Section 6 of the Act fixes four cumulative requisites for a valid adoption: the adopter has capacity (Sections 7 and 8), the giver has capacity (Section 9), the person adopted is capable of being taken (Section 10), and the other conditions (Section 11) are complied with. Section 10 and Section 11 thus form the third and fourth limbs of that test. Section 5(1) makes any adoption in contravention of the Chapter void — not voidable, not irregular. Once a Section 10 or Section 11 condition fails, the transaction is a nullity from inception, with no document of acknowledgement or subsequent conduct able to cure it.

Statutory anchor — Section 10 HAMA

Section 10 carries the heading Persons who may be adopted. It opens with the words "No person shall be capable of being taken in adoption unless" — phrasing that converts every clause that follows into a condition precedent. The four clauses are:

Note four drafting features. First, gender neutrality — "he or she". The 1956 Act consciously broke from the shastric rule that only a son could be adopted; a Hindu daughter is now adoptable on the same conditions as a Hindu son, a change which dovetails with the equal capacity to give recognised in Capacity to Adopt under Sections 7 to 9 HAMA. Second, the four clauses are conjunctive — the chapter heading and the use of "unless" makes each one independently essential. Third, only clauses (iii) and (iv) carry the custom-or-usage saving; the Hindu-religion requirement and the not-already-adopted bar admit no exception. Fourth, the burden of bringing a case within the custom proviso lies on the party setting up the adoption.

Clause (i) — The person must be a Hindu

The preamble of the Act declares that it deals with the law "relating to adoptions among Hindus". All three parties to a valid Section 10 adoption — the giver, the taker and the child — must be Hindus, with one operational concession: a giver who is not a Hindu does not in every situation defeat the adoption, and the religion of an abandoned child or a child whose parentage is unknown is presumed to be Hindu for the purpose of the Act. The expression "Hindu" itself is wider than the popular sense. Section 2 HAMA imports the same coverage as Section 2 of the Hindu Marriage Act: a Buddhist, Jain or Sikh by religion is a Hindu for the Act, as is any person domiciled in India who is not a Muslim, Christian, Parsi or Jew.

The point is not academic. A Sikh couple may adopt a Sikh child under HAMA; a Jain couple may adopt a Buddhist child. The wider statutory definition of "Hindu" tracks the same logic that runs through the application of Hindu Law and Section 2 HMA across every codified family-law statute of 1955 and 1956. What HAMA forbids is a cross-religion adoption — a Christian giving a Christian child to Hindu parents under HAMA, or a Hindu couple receiving a Muslim child under HAMA. Such transactions, if pressed through, are governed by the Juvenile Justice Act 2015 route surveyed in the landmark cases, not by HAMA.

Clause (ii) — The child must not have been adopted before

Once a child is validly adopted, the adoption is a closed transaction. Section 15 of the Act declares that an adoption duly made cannot be cancelled by any party, and that an adopted child cannot renounce that status to return to the family of birth. The bar in Section 10(ii) is the natural corollary: a child already adopted cannot again be given. The reasoning is structural rather than moral. After the first adoption, the original parents have no surviving authority to give — Section 9 vests the power to give in the natural parents (or, on default, in the guardian), and the first adoption extinguishes that power. The new adoptive parents, in turn, are forbidden by Section 9(1) from being givers themselves. There is therefore no person in law competent to make the second giving.

The principle also explains why a foundling adopted by an orphanage manager under Section 9(4) — once the formal adoption is complete — cannot be re-adopted by another set of parents through a fresh Section 10 transaction. The route, if the original adoption is to be undone, is not a second adoption but a challenge to the first. Section 5(1) provides the doctrinal handle: an adoption made in contravention of the Chapter is void, and a void transaction may always be ignored. But absent that frontal challenge, the not-already-adopted bar is absolute.

Clause (iii) — The child should not be married

Section 10(iii) forbids the adoption of a married person unless a custom or usage applicable to the parties permits the adoption of married persons. Two questions arise: what counts as "custom or usage", and where lies the burden? On the first, Section 3(a) HAMA defines custom as a rule which has been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family, is certain, is not unreasonable, and is not opposed to public policy. The standard is the standard the Privy Council laid down a century before — long-continued, unbroken, certain, reasonable, not opposed to public policy — and it is no looser for the personal-law context.

On the second, the burden lies on the party setting up the custom. In Maya Ram v. Jai Narain, the Punjab and Haryana High Court considered the entries in the Rewajiam of Tehsil Rohtak for the year 1909-10, which recorded a Jat custom that a married person could be adopted, with the only restriction being that a person who already had a son could not himself be adopted. The court accepted the entries as evidence of an established Jat custom and upheld the adoption of a married Jat — even one who already had a son — within the community. The decision is a clean illustration of how the proviso operates: documentary record of a long-observed practice, applicable specifically to the parties' community, displaces the statutory bar.

Where no such proof is led, the bar bites. A married Hindu cannot be adopted simply because the parties want it that way. The proviso is a saving for genuine community custom, not a default escape valve.

Clause (iv) — The child must be under fifteen

The fifteen-year cap is the headline rule of Section 10. A person who has completed fifteen years of age is, on the face of the statute, incapable of being taken in adoption — again subject to the custom-or-usage saving. The cap reflects two policy choices the Legislature made in 1956. First, adoption is intended to absorb the child into the adoptive family during formative years, when the affective and educational ties are still being shaped; an adult adoptee defeats that purpose. Second, a fifteen-year ceiling tracks the spiritual logic of the older shastric position that the boy be adopted before upanayana in the twice-born classes, and before marriage in the Sudra classes — the Act translates that into a single secular age cap.

The proviso has been litigated. Where the age of the adoptee was 25 years at the time of adoption and no custom was proved, the adoption was held void. The Bombay School historically permitted the adoption of a person of any age — the Vyavahara Mayukha rule — but the rule reflects the custom of Western India rather than any general shastric principle, and survives only as a saved community custom under the proviso. Among the Punjabi Jats, the courts have recognised a custom that a married boy above the age of fifteen may be adopted; that custom is the one applied in the Maya Ram line of decisions.

The procedural rule is the same as for clause (iii): the party setting up the adoption proves the custom. Custom that the courts have repeatedly recognised need not be re-proved in every case — a court may take judicial notice of a custom which has been brought to its attention often enough to be treated as introduced into the law — but a fresh community custom on age must be proved with evidence.

Statutory anchor — Section 11 HAMA

Section 11 is the second limb. It assumes a Section 10 child — Hindu, not already adopted, unmarried, under fifteen — and adds six structural conditions that the adoption itself must satisfy. The conditions are about the composition of the adoptive family, the relative ages of the parties, and the act of transfer.

Section 11(i) — No Hindu son, son's son or son's son's son

If the adoption is of a son, the adoptive father or mother must not have a Hindu son, grandson or great-grandson living at the time of adoption — by legitimate blood relationship or by adoption. The provision flatly precludes the old practice of adopting a brother's or cousin's son to enlarge the adoptive family beyond a single male line, the survival of the putrika-putra and dvyamushyayana doctrines that pre-1956 custom occasionally tolerated. Under the present Act, one Hindu legitimate son in the family — natural or adopted — exhausts the right to adopt another.

Three operational points have been settled. First, the existence of a son in womb at the time of adoption does not invalidate the adoption — the rule speaks of a son "living" at the time, not a son en ventre sa mere. Second, the disqualifications of the old law that allowed the father to bypass an existing son — ascetic son, son converted to another religion, insane son, illegitimate son — are gone; the expression "son" in Section 11(i) means only a Hindu legitimate son, but every such son bars further adoption regardless of his disqualifications. Third, a step-son does not bar the widow from adopting a son to herself; a son of a void or annulled voidable marriage, or of a marriage dissolved by divorce, does bar.

Sawan Ram v. Kalawanti is the leading authority on the relational consequence of the rule. The Supreme Court held that a son adopted by a widow becomes the son not only of the widow but of her deceased husband; he is absorbed into the family of the deceased husband and steps into the line of coparcenary as the sole surviving coparcener. The case is on Section 12 effects, but its premise — that one adopted son fully occupies the adoptive coparcenary — is the same premise on which Section 11(i) bars a further adoption. The doctrinal architecture is unpacked in the chapter on joint Hindu family, karta and coparcenary structure.

Section 11(ii) — No Hindu daughter or son's daughter

The corresponding rule for a daughter is a 1956 innovation. The shastric law did not recognise the adoption of a daughter at all, on the spiritual reasoning that a daughter conferred no shradh benefit on the adopter. The Act displaces that reasoning entirely — Section 10(i) makes any Hindu adoptable, and Section 8 gives every Hindu woman of full capacity the right to take a daughter — and Section 11(ii) then imposes the symmetrical bar: if there is already a Hindu daughter or son's daughter living, by blood or by adoption, no further daughter may be adopted.

In Sandhya v. Union of India, a petitioner challenged the Section 11(ii) bar on the ground that personal law violated the right to adopt two daughters. The court held that personal law does not fall within the definition of "law" in Article 13 of the Constitution and the bar therefore did not violate any fundamental right. The single-daughter rule survives constitutional scrutiny in the same way the single-son rule does. As with sons, an adopted daughter — or an adopted son's daughter — bars; a daughter of a void or annulled voidable marriage bars; the adoptive parents cannot expand the daughter line beyond one. The post-2005 position on the daughter's coparcenary right after Vineeta Sharma intersects here — a daughter who is already a coparcener by birth in the adoptive family is, on Section 11(ii), a daughter "living" who bars the adoption of another.

Section 11(iii) and (iv) — The 21-year age gap

Where the adopter and the adoptee are of opposite sex, the adopter must be at least twenty-one years older than the adoptee. The rule cuts both ways: a male adopting a female must be twenty-one years her senior, and a female adopting a male must be twenty-one years his senior. The drafting is express and admits no proviso — there is no custom-or-usage saving for the age gap.

The policy is plain on the face of the section: the Legislature wanted to eliminate any prospect of an immoral relationship between the adoptive parent and the adopted child of opposite sex. Where same-sex adoption is concerned — a male adopting a male, or a female adopting a female — no minimum age gap is statutorily required; the only discipline is the age cap on the child under Section 10(iv) and the eighteen-year minimum age on the adopter under Section 7 or 8. The asymmetry is deliberate.

The Devgonda Patil v. Shamgonda case applied the rule in a clean fact-pattern: a Section 11(iii) violation was held to render the adoption void. The decision is the standard authority for the proposition that the age gap is a substantive condition, not a procedural niceity. Where the gap falls short — even by a few months — the adoption fails. Section 5(1) treats it as void ab initio.

Section 11(v) — No simultaneous double adoption

The same child may not be adopted simultaneously by two or more persons. The historical concern was the custom of dvyamushyayana, under which the child was deemed the son of both the natural and the adoptive father by stipulation at the time of adoption. The Act extinguishes the practice for adoptions made after 1956; one child cannot have two adoptive fathers, even if they are brothers, and an adoption to one disqualifies him for another. The Privy Council in Runganupa v. Atchma had already held that a man with one adopted son cannot adopt another; Section 11(v) is the statutory embodiment of that holding.

Where the adoptions are not simultaneous, only the prior adoption is valid; the subsequent one is void. If the adoptions are simultaneous, both fail — the death of the second adoptee will not validate the first, since the first was void ab initio.

Section 11(vi) — Actual giving and taking

The sixth condition is the only ceremony the Act retains. The child must be actually given and taken in adoption by the parents or guardian concerned, or by a person under their authority, with the intent to transfer the child from the family of its birth to the family of adoption. In the case of an abandoned child or a child whose parentage is not known, the giving is from the place or family where the child has been brought up. The proviso to Section 11 makes clear that the performance of datta-homam — the religious oblation that under shastric Hindu law was a necessary ceremony for adoption — is not essential to the validity of the adoption.

The leading authority on what "given and taken" requires is the Supreme Court's decision in Lakshman Singh Kothari v. Smt. Rup Kanwar. The physical act of giving and taking, with the intent to transfer the child from one family to another, was held to be an essential part of every valid adoption. Giving and taking is absolutely necessary; it cannot be dispensed with. If there is no proof of actual delivery, the adoption is not valid. The burden of proving the ceremony lies on the party who alleges adoption — though where the question of adoption arises after a long lapse of years (in one decided case, forty-three years), the strict rule of contemporaneous proof is relaxed.

A document of acknowledgement — a registered deed reciting that the child was given and taken — is not, by itself, sufficient to establish the legal fact of adoption in the absence of any evidence about actual delivery. The deed is corroboration; it is not a substitute. Sitabai v. Ramchandra recognised that symbolic delivery may suffice where the parties are physically present and the act of transfer is ceremonially completed in their presence — but even then the act must occur, and intent alone is not enough.

Burden, custom and the proviso to clauses (iii) and (iv)

Section 10(iii) and 10(iv) admit a custom-or-usage proviso; Section 10(i), (ii) and the whole of Section 11 do not. The asymmetry is deliberate. The Hindu-religion requirement and the not-already-adopted bar are framework rules — to relax them would dissolve the framework of the Act. The married-person and over-fifteen rules, by contrast, intersect with genuinely diverse community practice, and the Legislature preserved the room for that practice through the proviso.

The standard for proving custom is the Section 3(a) standard. The custom must be ancient, certain, continuous, reasonable and not opposed to public policy. It must be specific to the parties — local custom of a tribe, group, family or community. The court will not extrapolate from an isolated instance, and will not accept a custom that runs counter to the statutory framework as a whole. Where the custom has been brought to the courts often enough to be treated as introduced into the law — the Punjabi Jat custom on married adoptees and over-fifteen adoptees, for instance — it may be applied without fresh proof in each case. Otherwise it requires evidence.

Effect of breach — Section 5(1) makes the adoption void

Section 5(1) HAMA provides that any adoption made after the commencement of the Act in contravention of the provisions of the Chapter is void. The wording is uncompromising. There is no concept of voidable adoption under HAMA — every breach of Section 10 or Section 11 nullifies the transaction ab initio. The void adoption confers no rights on the adopted child in the adoptive family, and severs no ties in the family of birth. Section 12 does not apply, since Section 12 operates only on a valid adoption.

Two consequences follow. First, no party to a void adoption can invoke the doctrine of factum valet — the principle that an act done in fact may be allowed to stand notwithstanding a directory rule — because Section 10 and Section 11 conditions are essential, not directory. Where the breach is of an essential condition, factum valet is unavailable. The doctrine survives only as a cure for non-essential or optional conditions: non-observance of datta-homam, omission of a religious ceremony that the Act does not require. Second, the void adoption may be challenged at any time. There is no limitation that bars a challenge to a void transaction, and the parties may proceed on the footing that no adoption took place.

The contrast with the regime under void marriages under Section 11 HMA is instructive. A void marriage produces no marital tie ever; a voidable marriage is good until annulled. Adoption under HAMA admits only the void category — there is no annulment proceeding because there is nothing to annul once Section 5(1) treats the transaction as a nullity. The conceptual neatness of the design matches the architecture of the rest of the Act.

Section 12 — Effects of a valid adoption

Once given and taken under Section 11(vi), and once the Section 10 and 11 conditions are satisfied, Section 12 takes over. The adopted child is deemed to be the child of the adoptive parents for all purposes from the date of adoption. All ties in the family of birth are severed and replaced by ties created in the adoptive family — a fiction the Act enforces uniformly. The doctrinal payload is treated in detail in the chapter on the effects of adoption and the doctrine of antecedent title under Section 12 HAMA; here it is enough to mark the bridge that Section 11(vi) builds.

Two provisos to Section 12 limit the fiction. Proviso (a) preserves prohibited-relationship limits derived from the family of birth: the adopted child cannot marry a person whom he or she could not have married while still in the family of birth, and the marriage prohibitions in Section 5 of the Hindu Marriage Act on conditions for a valid marriage apply to both families. Proviso (b) preserves any property which had vested in the child before the adoption — vested property carries forward, subject to any obligation attached to it (such as an obligation to maintain a relative in the family of birth).

The Juvenile Justice Act 2015 overlay

Adoption in India today operates on two parallel statutory tracks. HAMA — applicable only to Hindus, Buddhists, Jains and Sikhs — regulates personal-law adoptions and is the regime Section 10 and Section 11 belong to. The Juvenile Justice (Care and Protection of Children) Act, 2015 — read with the Adoption Regulations, 2017 framed by the Central Adoption Resource Authority (CARA) — provides a secular, religion-neutral track open to any prospective parents and any child declared "legally free for adoption". The two regimes differ in their eligibility framework, their procedure, and their effect.

On eligibility, the JJ Act allows a child up to eighteen years of age to be adopted, against HAMA's fifteen-year cap. The JJ Act makes no distinction between a married and unmarried adoptee at the upper age, against HAMA's general bar on married persons. The JJ Act has no son-daughter caps of the kind Section 11(i) and (ii) impose, and its age-gap requirement (a 25-year gap when a single parent adopts a child of opposite sex, under the CARA Regulations) is more protective than HAMA's 21-year rule. The JJ Act also superintends the entire process through CARA, requires court approval, and produces an order under Section 61 of the JJ Act.

The Supreme Court in Shabnam Hashmi v. Union of India recognised the JJ Act track as available to any prospective adoptive parent, regardless of the personal law that would otherwise govern. After Shabnam Hashmi, a Muslim couple, a Christian couple, or a Hindu couple may all proceed under the JJ Act if they wish — but a Hindu couple proceeding under HAMA must observe the fifteen-year cap, the married-person bar, and the Section 11 conditions as enacted.

The exam angle

Section 10 and Section 11 produce four classic MCQ traps. First, the fifteen-year cap and its proviso: a question on whether a Hindu Jat boy of seventeen can be adopted typically tests whether the candidate can identify the custom-or-usage saving and the burden of proof. Second, the son-daughter limit: a fact-pattern that gives the prospective adoptive father one Hindu daughter and asks whether he can adopt a son tests the asymmetric reading of Section 11(i) and (ii) — the rule bars a second son when there is a son, and a second daughter when there is a daughter, but it does not bar adoption of a son when only a daughter exists, nor adoption of a daughter when only a son exists.

Third, the 21-year age gap: questions test whether candidates can spot that the rule applies only when the adopter and adoptee are of opposite sex. Where a male adopts a male, or a female adopts a female, the gap is irrelevant. Fourth, the giving-and-taking ceremony: questions probe whether a registered adoption deed alone, in the absence of any evidence of physical delivery, can support an adoption. The settled answer, after Lakshman Singh Kothari, is no.

For a structured revision pass on the rest of HAMA and the cognate codified Acts, work through the broader Hindu Law notes covering HMA, HSA, HAMA and HMG; then reinforce by reading the corresponding chapters on maintenance under Hindu Law for wife, children and parents, Sections 18 to 22 HAMA on the obligation to maintain, natural and testamentary guardianship under HMG, and the post-2005 position on devolution of interest in coparcenary property under Section 6 HSA. The effect on succession is captured in the general rules of succession for males under Sections 8 to 13 HSA. The welfare-of-the-minor principle under HMG matters where the adoptee is below the age of majority and a guardianship dispute follows, and the principle animates the courts' approach to giving-and-taking proof.

The single bedrock of the law of adoption remains the discipline of Sections 10 and 11. Hindu, not already adopted, unmarried, under fifteen — the four conditions of capacity. No existing son or daughter, a 21-year age gap when the sexes differ, no simultaneous double adoption, actual giving and taking — the four structural conditions of the adoption itself. Section 5(1) closes the architecture by making any breach void ab initio. Read the four-and-four together, and the law of who may be adopted under HAMA reads as a single, internally consistent, exam-tractable rule.

Frequently asked questions

Can a Hindu boy aged sixteen be adopted under Section 10 HAMA?

Only if a custom or usage applicable to the parties' community permits the adoption of persons over fifteen, and only if that custom is proved on the standard set by Section 3(a) HAMA — long-continued, unbroken, certain, reasonable, not opposed to public policy. The Punjabi Jat custom recognised in Maya Ram v. Jai Narain is the textbook example. Without proof of such custom the adoption is void; the case where a 25-year-old adoptee was held void for want of proof of custom is the standard authority. Burden of proof lies on the party setting up the adoption.

Does Section 11(i) bar a Hindu couple with one daughter from adopting a son?

No. Section 11(i) bars the adoption of a son only when the adoptive father or mother already has a Hindu son, son's son or son's son's son living at the time. A daughter does not engage the Section 11(i) bar; she engages only Section 11(ii), which restricts the adoption of a further daughter. A Hindu couple with one daughter and no son may therefore adopt a son under HAMA. The asymmetric drafting of Section 11(i) and 11(ii) is a frequent MCQ trap.

Is a registered adoption deed sufficient proof of adoption?

No. The Supreme Court in Lakshman Singh Kothari v. Smt. Rup Kanwar 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. A document of acknowledgement is corroboration only; in the absence of evidence about actual delivery, a registered deed is not, by itself, sufficient to establish a legal adoption. Burden of proving the ceremony lies on the party who alleges the adoption, though after a long lapse of years the strict proof rule is relaxed.

Does the 21-year age gap apply to same-sex adoptions?

No. Section 11(iii) and 11(iv) impose the 21-year minimum age gap only where the adopter and the adoptee are of opposite sex — a male adopting a female, or a female adopting a male. Where a male adopts a male, or a female adopts a female, no minimum gap is required; the only age-related discipline is the eighteen-year minimum age of the adopter under Sections 7 and 8 and the fifteen-year cap on the adoptee under Section 10(iv). The opposite-sex limitation reflects the policy of eliminating any prospect of an immoral relationship between adoptive parent and adopted child.

What is the consequence of breaching a Section 10 or Section 11 condition?

Section 5(1) HAMA declares that any adoption made in contravention of the Chapter is void. The adoption is a nullity ab initio — it confers no rights in the adoptive family and severs no ties in the family of birth, and Section 12 does not apply. The doctrine of factum valet cannot cure a breach of Section 10 or Section 11 because the conditions are essential, not directory. Factum valet survives only as a cure for non-essential conditions, such as non-observance of datta-homam or other religious ceremonies the Act does not require.

Does the Juvenile Justice Act 2015 displace HAMA for Hindu adoptions?

No. After Shabnam Hashmi v. Union of India, the JJ Act provides a parallel, secular, religion-neutral track — open to Hindus, Muslims, Christians, Parsis and others — but it does not displace HAMA for Hindus who choose the personal-law route. A Hindu couple proceeding under HAMA must observe the fifteen-year cap on the adoptee, the married-person bar, and the Section 11 conditions in their original statutory form. The JJ Act's broader eligibility — children up to eighteen, no married-person bar, CARA superintendence — applies only when the adoption is processed under the JJ Act.