THE LEGAL BRIDGE

thelegalbridge.in

Prohibition of Consideration for Adoption — S.17

Topic 41 | Module 4: HAMA, 1956 | The Legal Bridge

For Judicial Service Aspirants: RJS | DJS | PCS-J | HJS | APO

Comprehensive Study Notes with Landmark Case Laws, Mnemonics & Exam Tips

Prohibition of Consideration for Adoption — Section 17 HAMA

Relevant Provision: Section 17 of Hindu Adoptions and Maintenance Act, 1956

Priority: LOW-MEDIUM | Exam Relevance: DJS / PCS-J (MCQ)

1. Introduction

Section 17 HAMA is a brief but significant provision that CRIMINALISES the giving or receiving of any payment or reward as consideration for adoption. This provision reflects the fundamental policy that adoption is a WELFARE measure — not a commercial transaction. Children are not commodities to be bought or sold. The section prevents the commercialisation of adoption and protects children from trafficking disguised as adoption. While Section 17 applies only to adoptions under HAMA (i.e., Hindu adoptions), the Juvenile Justice Act, 2015 contains parallel provisions for secular adoptions with more stringent penalties.

Classical Hindu law did not expressly prohibit consideration for adoption, though the giving and receiving of children in adoption was treated as a sacred act. With modernisation and the potential for misuse — particularly in contexts of child trafficking, baby-selling rackets, and exploitation of impoverished families — the legislative prohibition became essential. Section 17 serves as a deterrent and ensures that the primary purpose of adoption remains the WELFARE of the child and the creation of genuine parent-child bonds.

2. TEXT OF SECTION 17

"(1) No person shall receive or agree to receive any payment or other reward in consideration of the adoption of any person, and no person shall make or give or agree to make or give to any other person any payment or reward the receipt of which is prohibited by this section.

(2) If any person contravenes the provisions of sub-section (1), he shall be punishable with imprisonment which may extend to six months, or with fine, or with both.

(3) No prosecution under this section shall be instituted without the previous sanction of the State Government or an officer authorised by the State Government in this behalf."

3. ANALYSIS

3.1 The Prohibition — S.17(1)

Section 17(1) creates a DUAL prohibition:

Receiving: No person shall RECEIVE or AGREE TO RECEIVE any payment or reward in consideration of adoption.
Giving: No person shall MAKE or GIVE or AGREE TO MAKE OR GIVE any payment or reward for adoption.

Both the giver and receiver are equally liable. The prohibition covers:

Payment: Money in any form — cash, cheque, bank transfer, etc.
Other reward: Non-monetary consideration — property, gifts, favours, promises of future benefit.
Agreement: Even an AGREEMENT to pay/receive (without actual payment) violates S.17.

3.2 The Penalty — S.17(2)

Contravention is punishable with:

Imprisonment up to SIX MONTHS, OR
Fine (no maximum specified), OR
Both imprisonment and fine.

The offence is relatively mild in its punishment. Critics argue that the penalty is insufficient to deter commercial trafficking of children. The JJ Act 2015 provides more stringent penalties for similar offences involving non-Hindu adoptions.

3.3 Prosecution Safeguard — S.17(3)

No prosecution under S.17 can be instituted WITHOUT the previous sanction of the State Government or an officer authorised by the State Government. This safeguard prevents frivolous or malicious prosecutions. The requirement of prior sanction ensures that only genuine cases are prosecuted.

4. WHAT IS NOT PROHIBITED

Section 17 prohibits payment FOR adoption. It does NOT prohibit:

Reasonable expenses: Medical expenses of the birth mother, hospital charges, legal fees — these are not 'consideration for adoption' but legitimate expenses.
Post-adoption gifts: Gifts given after adoption as part of family custom or affection are not consideration.
Maintenance payments: Payments for the child's maintenance before adoption are legitimate.
Charitable contributions: Donations to orphanages or child welfare organisations are not consideration for a specific adoption.

The distinction is between payment FOR the adoption (prohibited) and payment associated with the process (generally permitted if reasonable and bona fide).

5. RELATIONSHIP WITH CHILD TRAFFICKING LAWS

Section 17 HAMA is a relatively weak provision against child trafficking. More stringent provisions exist under:

JJ Act 2015 S.80-81: Trafficking of children for adoption — imprisonment up to 5 years and fine of Rs 1 lakh.
IPC S.370-373 / BNS equivalents: Trafficking in human beings — rigorous imprisonment up to 10 years.
Immoral Traffic (Prevention) Act: Where applicable.
CARA regulations: Strict oversight of adoption process to prevent commercialisation.

6. LANDMARK CASES

⚖️ Laxmi Kant Pandey v. Union of India AIR 1984 SC 469

Ratio: LANDMARK. Supreme Court laid down comprehensive guidelines for adoption of Indian children by foreign parents. The Court emphasised that adoption must be for the welfare of the child, not a commercial transaction. Established the framework that eventually led to CARA. Anti-commercialisation principle central to the judgment.

⚖️ Shabnam Hashmi v. Union of India (2014) 4 SCC 1

Ratio: While primarily on secular adoption, the Court noted the importance of preventing commercialisation. JJ Act's regulatory framework (including CARA oversight) provides stronger safeguards than S.17 HAMA alone.

7. IMPORTANT POINTS FOR EXAM REVISION

S.17 — Dual prohibition: Both giving AND receiving consideration is prohibited.
Penalty: Up to 6 months imprisonment, or fine, or both.
Prior sanction: State Government sanction required for prosecution.
Covers agreements: Even agreement to pay/receive (without actual payment) is prohibited.
Weak penalty: Critics say 6 months is insufficient. JJ Act has stronger penalties.
Reasonable expenses: Legitimate expenses (medical, legal) are NOT consideration.
Laxmi Kant Pandey (1984): Anti-commercialisation guidelines for inter-country adoption.

🎯 EXAM TIP

MCQ facts: (1) Penalty = up to 6 months or fine or both; (2) Prior sanction of State Govt required; (3) Both giver and receiver punishable; (4) Agreement alone = offence.

8. PRACTICE QUESTIONS

Q1: Discuss the prohibition of consideration for adoption under Section 17 HAMA. What is the penalty?

Q2: Is Section 17 HAMA adequate to prevent child trafficking through adoption? Discuss alternatives.

Q3: A agrees to pay Rs 5 lakhs to B for B's child in adoption. Both are arrested. What offences?

Q4: Why does Section 17(3) require prior sanction of the State Government for prosecution?