Adoption

When a person assumes the responsibility of a child and takes the role of a parent to him, he is said
to have adopted the child. The laws governing adoption can vary from country to country and
religion to religion. The person adopted can be of any age be it an adult or a child. The parents can
often take legal recourse to adopt a child in order to have definite rights over the adopted child.
The consent of the child’s parents to the adoption may, in special cases, be substituted by the
approval of a judge.

The laws governing adoption in India are as follows:

The Hindu Adoption and Maintenance Act, 1956

The Act replaced the common Hindu law and to a great extent has codified the law on adoption.It
deals with the process of adoption of a child and all the legalities concerned with it.

Guardian and wards Act, 1980

Since the Muslims, Christians and Parsis have no other legal recourse regarding the adoption laws,
they can approach the court through this act.

Juvenile Justice (Care And Protection Of Children) Act, 2000

This act aims to provide rehabilitation facilities and strong integration with the society to the
orphan children who are given under chapter IV of the said act.

Who can Adopt a Child?

No person will be capable of being taken in adoption unless the following conditions are fulfilled

• The person should be a Hindu

• The person has not been married, unless there is a custom or usage applicable to the parties
which permit persons who are married being taken in adoption
• He or she has not already been adopted
• He or she has not completed the age of fifteen years, unless there is a custom or usage
applicable to the parties which permit persons who have completed the age of fifteen years
being taken in adoption
Requisites of a Valid Adoption
Under Sec 6 of the Hindu Adoptions and Maintenance Act (HAMA), only Hindus can adopt
subject to their fulfilment of specific criteria. As per the provision of this act, no adoption will be
valid unless fulfilling the following conditions:

• The person adopting should have the capacity and also the right, to take in adoption
• The person giving in adoption should have the capacity to do
• The person adopted should be capable of being taken in adoption
• The adoption should be made in compliance with the conditions of the Hindu Adoptions
and Maintenance Act (HAMA)

The laws concerning the capacity of a person to adopt have also been derived from the
interpretations of various cases such as Dhanraj v. Suraj Bai which pointed out the necessary
conditions of religion, age and consent of his wife (in case of a married man). In such conditions
the consent would not be necessary if she has completely renounced from the world, is no longer
a Hindu by religion or has been declared to be of unsound mind by the court.

Similarly, the case of Ambrish Kumari .v Hatu Prasad which specified that in case a person is deaf
or blind, he can show his consent during the time of adoption by any common gesture to make the
people understand.

In case the adoption is made without taking the permission of the wife, then such adoption would
be considered to be invalid adoption. The consent in such cases can be taken in either an express
or implied manner.(proviso to sec 7)

In the case of Kumar Sursen v. State of Bihar, the court pointed out that if the person is not a Hindu
by religion then is not allowed to give the child in adoption or hence it would constitute void
adoption. Also, in the case of Amar Singh v. Tej Ram, if the custom of a particular community
permits that a married person can be adopted then this condition persists in cases of adoption and
there is no bar to it.

Section 11 lays down some other essential condiions for a valid adoption which are as follows:-

i) if the adoption is of a son, the adoptive father or mother by whom the adoption is made must not
have a Hindu son, son's son or son's son (whether by legitimate blood relationship or by adoption)
living at the time of adoption;
(ii) if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made
must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by
adoption) living at the time of adoption;

(iii) if the adoption is by a male and the person to be adopted is a female, the adoptive father is at
least twenty-one years older than the person to be adopted;

(iv) if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at
least twenty-one years older than the person to be adopted;

(v) the same child may not be adopted simultaneously by two or more persons;

(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian
concerned or under their authority with intent to transfer the child from the family of its birth 2[or
in the case of an abandoned child or child whose parentage is not known, from the place or family
where it has been brought up] to the family of its adoption:

PROVIDED that the performance of that human shall not be essential to the validity of adoption.

What is Adoption?
The Act has no description of the word “Adoption” per se, but it is a Hindu law derived from
uncodified Hindu laws of Dharamsastra, specifically Manusmriti.

Adoption has been described in Manusmriti as ‘taking someone else’s son and raising him as
one’s own’.
The capacity of a Hindu male to adopt.

Section 7 states that a male Hindu who is willing to adopt a child must fulfil the following
conditions:

• Attained the age of majority; and

• Be of sound mind.
• Must have a wife that is alive whose consent is absolutely necessary.
• It can be overlooked if the wife is incapable of giving consent due to insanity or other
reasons.
• If a person has multiple wives, the consent of all the wives is necessary for adoption.
In Bhola & ors v. Ramlal & ors, the plaintiff had two wives and the validity of adoption was in
question as he had not taken the consent of one of his wives before adopting.

It was the contention of the plaintiff that his wife had absconded and could be considered as good
as dead.

The High Court of Madras observed that the wife of the plaintiff had run away but could not be
considered dead unless she had not been heard from for at least seven years. It was held that as
long as the wives are alive, the consent of each wife is necessary for a valid adoption.

If the wife has converted to some other religion or renounced the world, her consent isn’t necessary
for adoption. But, the existence of a living wife is an essential requirement for a Hindu male to
adopt children.

(i) The consent of wife envisaged in the proviso to section 7 should either be in writing
or reflected by an affirmative/positive act voluntarily and willingly done by her.
If the adoption by a Hindu Male becomes subject matter of challenge before the
court the party supporting the adoption has to adduce evidence to prove that the
same was done with the consent of his wife. This can be done either by producing
document evidencing her consent in writing or by leading evidence to show that
wife had actively participated in the ceremonies of adoption with an affirmative
mindset to support the action of the husband to take a son or daughter in adoption;
Ghisalal v. Dhapubai, AIR 2011(ii) During subsistence of a marriage a wife has no
right to adopt, only to give consent in adoption if taken by her husband;
Malati Roy Chowdhury v. Sudhindranath Majumdar, AIR 2007
The capacity of a Hindu female to adopt.

Section 8 of the act states that a Hindu Female willing to adopt a child must:

• Have attained the age of minority;

• Be of sound mind;
• Be either a widow;
• Divorced, or
• Unmarried in order to adopt.
If she has a husband who is alive, she will not have the capacity to adopt a child.

(i) A female Hindu who is of sound mind and has completed the age of 18 years can also take a
son or daughter in adoption to herself and in her own right. A female Hindu who is unmarried or
a widow or a divorcee can also adopt a son to herself in her own right, provided she has no Hindu
daughter or son‘s daughter living at the time of adoption. However if she is married a female Hindu
cannot adopt a son or a daughter during the lifetime of husband unless the husband is of unsound
mind or has renounced the world;
Ghisalal v. Dhapubai, AIR 2011

(ii) There is conceptual and contextual difference between a divorced woman and one who is
leading life like a divorced woman. Both cannot be equated. The appellant because of her physical
deformity lived separately from her husband and too for a long very long period right from the
date of marriage. But in eye of law they continued to be husband and wife because there was no
dissolution of marriage or divorce in the eye of law. Son adopted by appellant was declared invalid;
Brajendra Singh v. State of Madhya Pradesh, AIR 2008

(iii) Where there is no evidence to show that the female Hindu was seriously ill, mentally or
physically, it has been held that she is in position to shoot;
Devgonda Raygonda Patil v. Shamgonda Raygonda Patil; AIR 1992