Adoption under Hindu Law in Bangladesh

In Bangladesh Adoption is only approved under Hindu Law but as it follows the principal of traditional Hindu Law and customs there are many surprising facts we need to know. This article will give you an overall legal state of Adoption under Hindu Law in Bangladesh with legal reference, case laws and a bit of necessary explanation.

Hindu philosophers say “a man born with three debts:

  1. Debts to rishis (sages),
  2. Debt to Gods and
  3. Debts to ancestors.” These debts are discharged by giving birth to a male child who studies the Vedas[1] and offers sacrifice[2]. For the same reason, Son is given great importance in Hindu Law.

In Hindu religion, it is believed that, a son

  1. Saves his ancestors from going to hell called “put” therefore he (Son) is called puttra in various Indian languages.
  2. The son saves his ancestors by “Panda-dan” [offering funeral cakes and libations of water] on occasion of “Shraddha” which is a ceremony performed by the son in honour of a dead ancestor.
  3. He continues his father’s bloodline or family.
Adoption Bangladesh Hindu Law

Symbolic: Adoption happiness;

Now, this is very straightforward that for both present life and afterlife a Hindu man requires a son and that’s the basic philosophy of adoption in Hindu law. Yes, you guessed it right only a son can be adopted in traditional Hindu law and Bangladesh follows the same as our Hindu personal law never changed in this regard like India or other countries. Now, let’s know another important element of adoption in Hindu Law.

First question that may come to once mind is; what would be the legal status of an adopted son and what would be the consequence of an adoption? Regarding this question scholars of Hindu law wrote that; Adoption is the civil death of a son in the natural family and legal birth of a son in the adoptive family. On adoption ties of the son with his old family are severed and he is taken as being born in the new family, acquiring rights, duties and status in the new family and his ties with old family end there as if he born in the adopted family.

Hindu adoption case laws;

Adopted son stands equal to natural son;

The word “issue” includes “child”. Under the Hindu Law, the adopted son in relation to his adopted father stands equally with the natural son in temporal and spiritual matters. Hindu Law does not make distinction between a natural son and adopted son in the matter of inheritance, whether it is in the application of personal law or secular law, the adopted son has the same status with the natural son. Adoption of a surda is not contrary to Hindu Dayabhaga Law.

# Anath Bandhu Guha Vs. Sudhangsu She/chore Dey. 31 DLR (1979) (AD) 312.

Adoption in Hindu Law is a formal act

Adoption in Hindu Law is a formal act having far-reaching consequences material as well as spiritual and it is generally evidenced by a document. By adoption, a person passes out of the family to which he belonged by birth and is transplanted into the family which adopts him.

# Perumal Vs. Government of Pakistan. 15 DLR (1963) (SC) 58.

Therefore, we can say;

  • An adopted son is creation of law
  • An adopted son stats on an equal footing with natural son in the matter of both temporal an spiritual fact.

Conditions of a valid adoption:

Who may or may not be adopted?

  • Son only
    • Son can be adopted because son can perform the religious/spiritual aspect of Hindu law
  • Not deaf or dumb
    • He must not be deaf or dumb (for the same previous reason)
  • Age; Generally before uponoyon
    • According to Dayabhaga School [A part of /customs/type of practice in Hindu law that is followed by Hindus of Bangladesh and Bangle, Assam in India], it is considered 15 years is the age of Uponoyon
  • The only son cannot be adopted
    • Where one father has only one son that son cannot be adopted because that would invalidate the spiritual right of his (son’s) natural father.
  • The boy to be adopted must belong to the same cast, but not necessary that he should belong to the same sub –cast.[3]
    • Case Law;
      Hindu Society is divided into four castes namely Brahmin, Kshatriya, Vaisya and Sudra. There might be question with regard to the validity of an adoption between one caste and another caste. But If such adoption is found to have been taken place within the broad range of one caste only, such adoption cannot be questioned on the ground of difference in the sub-caste between the parties concerned. Kayastha of Bengal is sudra. It is an admitted position in Hindu Law that there is no bar as such for a “Kayastha” adopting a “Namasudra” both being “Sudras” as such.# Sudhangshu Shekhar Vs. Anath Bandhu. 28 DLR (1976) 313. 
  • If the adopted father and the adopted son’s natural mother belongs in a relation where marriage is prohibited, then that son cannot be adopted.
    • Example; Sister’s Son (nephew) cannot be adopted.
  • An orphan cannot be adopted
    • Because there are certain ceremonies to be conducted that require parents or natural father; discussed later in this article.
Adoption

Symbolic: Adoption

Who may adopt?

  • A man, who is sound mind and already achieved his uponoyon age.
  • Adopted father must not have any son or son’s son how low soever, whether that son or son’s son is natural or adopted.
  • He might be married, unmarried or widower; if he is married his wife’s consent is not necessary.
  • Adoption can be done if at the time of adoption the adopted father’s wife is pregnant.
  • A minor may adopt and give authority to his wife to adopt.
  • Impurity by birth or death of a relation does not validate an adoption.

Can woman adopt?

  • An unmarried woman cannot adopt.
  • A married woman cannot adopt of herself but can adopt for her husband if the husband permits her to do so.
  • A widow can adopt for her husband if he permits her before his death.

Who can give adoption?

Adoption requires two formalities or ceremonies based on these formalities we can determine who can or cannot give adoption.

Adoption Ceremony

# Datta Homa;

Manu Said; “He whom his father and mother give to another as his son … is considered as a son given, the gift being confirmed by pouring water.”

“But let no man give or accept an only son since he must remain to rise up a progeny for the obsequies of ancestors [to continue natural fathers bloodline and complete funeral rites]. Not let a woman give or accept son unless with the assent of her lord” – Vasistha –

Giving a son for adoption is sacred and voluntary gift besides; Manu requires that gift to be confirmed by pouring water.

A daughter given in marriage, which is called kanyadan and a son given in adoption which is called puttradan are in the same footing.

Finally, Homa is a sacrifice ritual and Datta Homa is a ritual where oblations [offerings] of clarified butter to fire by way of religious propitiation or obligation. And it is confirmed as necessary by the Privy Council.[4] But it can be performed later even after the death of adopted father of natural father. Besides, this adoption must be made with the free consent of the parties [by both fathers. The right to give his son as a gift [adoption] is only lies to the natural father of that son but where the father has made his decision and expressly or impliedly permitted his wife to give adoption, and then she can give adoption.

# Actual giving and taking like other gift is required in Hindu Adoption

Some important points about Hindu Adoption;

  • No formal ritual is needed for adoption of Sudra [Class][5]
  • An adoption once made cannot be cancelled

Adoption under Hindu Law in Bangladesh faces a lot of criticism but no changes have made so far and one of the reasons is people do not understand the details of Hindu adoption law. It is our duty to spread the correct knowledge for positive change.

Reference

[1] A large body of knowledge texts originating in the ancient Indian subcontinent/ Religious texts of Hindus

[2] For his father at his death ceremony.

[3] Shib Deo V. Ramprasad (1924) 46 ALL 637

[4] 5 Cal. 381

[5] 31 DLR AD 312; 28 DLR HCD 315.

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Rayhanul Islam

The author is an original thinker; often challenges the regular rule of conduct considering various perspective on the basis of scientific reasoning to ensure the peace and prosperity of the society. He works as a lawyer and promotes legal knowledge and human right concept to the root level. The author is also a tech enthusiast and web developer, he loves psychology as well. connect me @ https://rayhan.lawhelpbd.com or +88 01711-386146

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