|Date | Version||August 6, 2020 | 1.0|
|Keywords||‘Hindu Law’, ‘Inheritance rights’, ‘Step-child’, ‘Step-son’, ‘Step-daughter’, ‘Adoption’, ‘Adopted child’, ‘Adopted son’, ‘Adopted daughter’, ‘Adoptive mother’, Adoptive father’, ’Natural born’.|
|List of Legislations Referred||‘The Hindu Succession Act, 1956’ and ‘The Hindu Adoption and Maintenance Act, 1956’|
HINDU LAW: INHERITANCE RIGHTS OF STEP-CHILD AND ADOPTED CHILD
Whether for the purposes of inheritance, a step-child and an adopted child stand on the same footing?
The Hindu Succession Act, 1956 (‘HSA’) provides for the inheritance rights in the case of Hindus. The HSA applies to those who are Hindu, Buddhist, Jains and Sikh by religion. The manner and order in which the property of Hindu is devolved has been specifically provided under Section 8, in the case of the males and in Section 15 in the case of the females.
In both cases of male and female Hindus, the inheritance rights in the first instance is that of the sons and daughters. The HSA does not mention step-sons/step-daughters or adopted-sons/adopted-daughters. The HSA also does not define step-sons/step-daughters or adopted-sons/adopted-daughters. For that matter, the HSA does not define sons and daughters also.
We therefore can look up the meaning of the same in the dictionary. The dictionary meaning of the expression step-child is “a child of a spouse born out of the wedlock with the former’s spouse”[i]. In other words, a child of one’s husband or wife by a previous marriage.
The issue whether the word son includes step-son came up for consideration before the Supreme Court in Lachman Singh vs Kirpa Singh and Ors[ii]. The question before the Court was whether the step-son is entitled to inherit the property of his step-mother. The Court analyzed the meaning of word sons and held that the word sons as contained in Clause (a) of Section 15 (1) of HSA, would only mean sons born out of the womb of a female by the same husband or by different husbands including illegitimate sons. The Supreme Court held that for the purposes of inheritance, the adopted sons would fall with the meaning of word sons. The Court was further of the opinion that had the legislature intended to include step-sons within the meaning of sons it would have expressly provided so in the HSA. The step-son was therefore considered to be heir of the husband as referred to in Clause (b) of Section 15 (1) of the HSA. It is clear that step-sons and step–daughters cannot be included within the meaning of sons and daughters as defined in the HSA.
The said judgment of the Supreme Court has been subsequently followed by the Supreme Court itself and various High Courts in several matters.[iii]
Therefore, when it comes to inheritance, the natural born sons and daughters are given precedence over step-sons and step-daughters. Thus, if a natural born child is alive, the step-child will not be entitled to any inheritance rights in the property of his or her step-parent.
Though it was held in Lachman Singh’s case that the adopted son shall also be deemed to be a son for the purposes of inheritance. However, the Court did not discuss the reasons for including the adopted son within the meaning of word son.
Adoptions amongst Hindus, Buddhists, Jains or Sikhs on the other hand are governed under the provisions of Hindu Adoptions and Maintenance Act, 1956 (‘HAMA’). A child would therefore be considered to be an adopted child if he or she has been adopted as per the provisions of HAMA. The HAMA provides as to who can be taken in adoption. The HAMA also provides for who all can take a child in adoption. There is therefore clarity as to who is an adopted child.
Section 12 of the HAMA provides the effects of adoption. The adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption. On adoption the ties of the adopted child with his family of birth are severed and automatically the same are replaced by those created by adoption in the adoptive family.
Section 14 provides four (4) different cases of adoption: –
First, where a wife is living, adoption by the husband results in the adoption of the child by both the spouses and the child is not only the child of the adoptive father but also of the adoptive mother.
Secondly, where there are two wives, the child becomes the adoptive child of the senior-most wife in marriage, the other wife will become the step-mother of the adopted child.
Thirdly, where the child is adopted by the widower or a bachelor and he gets married subsequent to the adoption, after marriage his wife will become the step-mother of the adopted child.
Lastly, where an adoption is made by a widow or an unmarried woman and she gets married subsequent to adoption, the husband shall become the step-father of the adopted child. There may also be a circumstance where a widow adopts a child after the death of her husband, the child adopted becomes the child not only of the widow but also of her deceased husband.
As per Section 14 of the HAMA, the adoptive child is to be considered equal to a natural born child save as otherwise proved in the said Section.
In ‘Smt. Sitabai and Anr. v. Ramchandra’[iv], a widow adopted a child after the death of her husband. The matter reached the Supreme Court and the issue involved was whether on adoption by widow, the adopted child became the coparcener in the joint family properties of her deceased husband. The Supreme Court after considering the provisions laid down in Section 12 and 14 of HAMA held that the result of adoption by either spouse is that the adoptive child becomes the child of both the spouses. Therefore, when the child was adopted by the widow, he became the adopted son of both the widow and her deceased husband and also became the coparcener in the property of her deceased husband.
In Basvarajappa vs. Gurubasamma & Ors.’[v], the Supreme Court has reiterated the legal position that on adoption, the adopted child gets transplanted in the family in which he is adopted with the same rights as that of a natural born son. This was a case wherein the deceased died intestate leaving behind an adopted son, seven daughters and a grand-daughter. After the death of the deceased, one of the daughters filed a suit and claimed share in the properties left behind by their father. The court applying the aforementioned ratio held that the adopted son shall be equally entitled for a share in the properties left behind by the deceased along with the natural heirs.
It is therefore manifestly clear that the courts in India have been treating an adopted child at par with the natural born child.
It is also important to note that Proviso (b) of Section 12 of the HAMA which states that the adopted child shall not be divested of any property which was vested in him before the adoption. Thereby meaning, that after adoption, the adopted child shall also take from the family of his birth the property which was vested in him before adoption.
In view of the above it is clear that for the purposes of inheritance, a step-child and an adopted child do not stand on the same footing. An adopted child always has a preference over a step-child, as under Hindu law an adopted child is treated at par with a natural born child. On adoption, an adopted child is entitled to inherit the properties in the same right as that of a natural born son or daughter. However, a step-son or a step-daughter will not inherit the property as a natural born child.
[ii] (1987) 2 SCC 547.
[iii] Jagat Singh vs. Sawai Bhawani Singh, 2018 (1) RCR (Civil) 765 (Delhi); Raj Rani & Ors.vs. Bimla Rani, AIR 2011 Delhi 170; Murlidhar Deonath Samel vs. Sadashiv Deonath Samel & Ors., AIR 1991 Bom 7; Neol Dominic Pareira vs. Pamela Ethel Kuhn & Ors, AIR 2011 Bom 27; Shyambir vs. Hira and Ors., RSA No.1403 of 2015 (P&H); Sanjay Kumar Patengay vs. Satyanarayana Rao Patengay 2014 (1) ALD 201, AP; Janardhan Badrinarayan Patel & Ors.vs. Sheth Ambalal Himatlal & Ors., AIR 1999 Guj 162.
[iv] (1969) 2 SCC 544.
[v] (2005) 12 SCC 290.