The Changes Meant to Simplify the Hindu Adoptions and Maintenance Act, 1956 and Eliminate Speculative Litigation are:
(i) Abolition of the Doctrine of Relation Back:
Under the Shastric law there was the doctrine of relation back by which the adoptee is treated as a posthumous son. The continuity of the line of the adoptive father was thus maintained by a legal fiction. The consequence of this was divestment of estates vested in other relations prior to the adoption.
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ADVERTISEMENTS:
The adoption, may be made long after the vesting and speculative litigation launched to upset longstanding titles. Ruinous litigation of this kind is not now possible for the doctrine of relation back because it has been abolished by the Hindu Adoptions and Maintenance Act, 1956. An adoption does not divest any vested rights under the new law.
(ii) Maternal Affiliation Clarified:
Formerly there were many complications in regard to maternal affiliation for an adopted child. Who is the adoptive mother when the adopter has many wives or when the adoption is made by a widower or when a bachelor adopts a son and then marries a woman? Doubts on such points have now been set at rest by clearly lying down in s. 14 how the adoptive mother is to be determined in such cases.
(iii) Widow’s Power of Adoptions:
The Shastric law was based upon a text of Vasishtha requiring a woman to adopt only with the consent of her husband. The text gave rise to four different interpretations. As a consequence of this the Mithila School of law did not allow a widow to adopt at all while the Benaras and Bengal Schools allowed her to adopt only if her husband has given her during his lifetime an express authority to adopt.
Under the Dravida School even in the absence of such authority a widow could adopt with assent of the Sapindas of the husband; while a widow governed by the Maharashtra School was in a still more favourable position for she needed no authority at all from anyone to make a valid adoption. Now the law has been simplified and the law governing the widow under the Maharashtra School has been applied to all widows.
ADVERTISEMENTS:
The result is a widow can now adopt without anybody’s assent. The large volume of litigation under the old law as to motives of widow, refusal of consent by Sapindas, genuineness of husband’s authority etc, is now a thing of the past.
(iv) Abolition of the Rule in Bhoobun Moyee’s Case:
The Privy Council laid down a rule as to termination of a widow’s power to adopt even when she had an express authority from her husband and even when the life of the husband was in danger of extinction. This rule led to much litigation. It finds no place under the new Act.