Biological Father Can Adopt His Own Illegitimate Son under HAMA

Allahabad High Court 

Why in News? 

Justice Arun Kumar, in Budhi Ram and Others v. Ram Kesh (2026), while deciding a second appeal, upheld the concurrent findings of the courts below that the plaintiff had been validly adopted in 1970 by his own biological father, holding that the Hindu Adoptions and Maintenance Act, 1956 does not prohibit a Hindu male from adopting his own illegitimate son. 

What was the Background of Budhi Ram and Others v. Ram Kesh (2026) Case? 

• The dispute concerned agricultural plots belonging to one Badlu. The plaintiff, Ram Kesh, claimed that although his mother was married to Budh Ram, Badlu was his biological father, and that Badlu subsequently adopted him on November 8, 1970. 
• The plaintiff also challenged sale deeds dated June 18/19, 1973, allegedly executed by Badlu in favour of the defendants, alleging that the defendants had taken Badlu for medical treatment and fraudulently procured the sale deeds, and sought their cancellation. 
• The defendants denied the adoption, contending that since the plaintiff was Badlu's biological son, it was legally impossible for Badlu to adopt him, and maintained that the sale deed was genuine and voluntarily executed by Badlu for consideration. 
• The trial court found that the plaintiff was Badlu's adopted son and that the sale deed was invalid; the first appellate court affirmed these findings. The matter reached the High Court in second appeal. 

What were the Court's Observations? 

• On the Scope of Section 10 and Illegitimacy as a Disqualification: 
  The Court held that Section 10 of the Hindu Adoptions and Maintenance Act, 1956, which prescribes the persons capable of being adopted, does not exclude an illegitimate child merely on the ground of illegitimacy, and that the Act contains no express provision disqualifying a Hindu male from taking in adoption a child who is his biological but illegitimate son. 
• On the Distinction Between Capacity to Give and Capacity to Take in Adoption: 
  The Court clarified that the capacity of a person to give a child in adoption and the capacity of the person taking the child in adoption are distinct matters, and that the validity of the adoption had to be tested with reference to the statutory requirements applicable on the date of adoption. 
• On the Mother's Capacity to Give the Child in Adoption: 
  The Court noted that under the law applicable in 1970, the natural mother of an illegitimate child had the capacity to give the child in adoption to the person who desired to take him in adoption, and found that the evidence established that the plaintiff's biological mother had given him in adoption to Badlu, and that Badlu had taken him in adoption. 
• On the Significance of Section 11(vi) — Giving and Taking: 
  The Court held that Section 11(vi) requires the child to actually be given and taken in adoption with the intention of transferring the child from the family of birth to the family of adoption, and that the fact that the person taking the plaintiff in adoption was his biological father did not render the ceremony legally meaningless. Relying on the Supreme Court's decision in Lakshman Singh Kothari v. Smt. Rup Kanwar, the Court reiterated that "giving and taking" is the operative part of adoption, requiring a real act evidencing transfer of the child. 
• On the Absence of a Registered Adoption Deed: 
  The Court held that the special provision introduced by the 1976 amendment to Section 16, requiring a registered document as the only admissible proof of giving and taking for adoptions made on or after January 1, 1977, was prospective and did not apply to the 1970 adoption in question; hence, the factum of giving and taking could be established through other legally admissible evidence. 
• On the Incorrect Invocation of Section 9(4): 
  The Court found that the District Judge had incorrectly invoked Section 9(4) of the Act, which concerns the exceptional case of a guardian giving a child in adoption with prior court permission in circumstances such as death, renunciation, abandonment, or incapacity of both parents, or unknown parentage. The Court held there was no occasion to invoke that provision merely because the plaintiff was illegitimate, though the incorrect reference did not invalidate the adoption since the evidence independently established the giving and taking of the child. 
• On the Validity of the Registered Sale Deed: 
  The Court upheld the concurrent findings of the courts below that the sale deed executed by Badlu in favour of the defendants was not a genuine and voluntary transaction and that the consideration pleaded was not satisfactorily established, holding that a document's registered nature does not render it immune from challenge. 
• The Court accordingly dismissed the second appeal and affirmed the judgments and decrees of the courts below.

What is the Hindu Adoptions and Maintenance Act, 1956? 

Background & Purpose: 

• The Hindu Adoptions and Maintenance Act, 1956 (HAMA) was enacted as part of the Hindu Code Bill to codify and standardize the then-prevailing Hindu legal tradition. 
• The Act deals specifically with the legal process of adoption of children by a Hindu adult. 

Adoption: 

• Adoption means the process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of the adoptive parents, with all the rights, privileges, and responsibilities attached to a biological child. 

Adoption As Per HAMA, 1956: 

• This is the first enactment on the subject of adoption passed by the Indian Parliament. 
• The Act has no operation beyond the territories of India. 
• The Act applies to any person who is a Hindu, and also applies to Hindus domiciled in the territories to which the Act extends who are outside the said territories.

What are the Relevant Sections of Hindu Adoptions and Maintenance Act, 1956? 

Section 10 prescribes the persons who are capable of being taken in adoption under the Act: 

Key Provisions: 

• No person shall be capable of being taken in adoption unless the following conditions are fulfilled: the person is a Hindu; has not already been adopted; has not been married (unless a custom applicable to the parties permits married persons to be adopted); and has not completed the age of fifteen years (unless a custom applicable to the parties permits adoption of persons who have completed that age). 
• The provision does not exclude an illegitimate child from being taken in adoption merely on the ground of illegitimacy. 

Related Provisions: 

• Section 9(4): Permits a guardian to give a child in adoption with the prior permission of the court, in exceptional circumstances such as death, renunciation, abandonment, or incapacity of both parents, or where the parentage of the child is unknown. 
• Section 11(vi): Requires that the child be actually given and taken in adoption by the parents or guardian concerned, with the intent to transfer the child from the family of its birth to the family of its adoption. 
• Section 16 (as amended in 1976): Prescribes that for adoptions made on or after January 1, 1977, a registered instrument is the sole admissible proof of the fact that the child was given and taken in adoption; this requirement operates prospectively and does not apply to adoptions made before that date.