Adoption

Purpose of adoption

▪ Traditional/religious purpose

▪ Secular purpose

▪ There is confusion in the minds of

Judges relating to purpose
 Adoption
▪ Section 6: Requisites of valid Adoption
– Capacity to adopting and right, to take in
adoption (Section 7 – 8)
– Capacity to give in adoption (Section 9)
– Person adopted capable for adoption (Section
10)
– Other conditions (Section 11)
Capacity of male Hindu
(Sec 7)
▪ Completed the 18 years of age
– Minor adopting a child will be void ab initio
– No ratification for such adoption
– After attending majority may readopt
▪ Unsound Mind
– Strong presumption in favor of sanity/soundness
– No adjudication of the insanity by court is necessary
– But burden of proof may shift where it is shown in
inquisition adoptive father have been lunatic
– Smt. Gopi v Madanlal AIR 1970 Raj 190
 Capacity of male Hindu (Sec 7)

▪ Consent of wife (Proviso to Section 7)

– Wife’s consent is necessary
– Consent can be inferred from facts and circumstances of the
case
– Prominent part in ceremonies (Gishlal v Dhupabai AIR 2011 sc 644)
– No active participation may invalidate the adoption
▪ Consent not required
– Wife finally renounced the world
– Ceased to be Hindu (by conversion to any other religion)
– Wife is declared unsound mind by court
– Has more than one wife, consent would be necessary from all
 Capacity of male Hindu (Sec
7)
▪ Competency and widowed daughter in law capable of
adopting child. (Bhima Kotha Dalai v Sarat Chandra Kotha Dalai AIR
1988 Ori 14 )

▪ Consent is not contrary or in violation of Article 14 of

Constitution. (Lalitha Abhyankar vs union of India Air 1991 SC 188)
 Capacity of female Hindu (Sec
8)
▪ Personal Law Amendment Act 2010
▪ Sound Mind, Major
▪ Consent of Husband
▪ Exception
– Renounced the world
– Cease to be a Hindu
– Unsound Mind

▪ Adoption by widow
– Previously not permitted
– Doctrine of relation back
– Abhishek Sharma v State of UP AIR 2009 ALL 77
Persons Capable of giving in Adoption
(Section 9)

▪ Father
▪ Mother
▪ Stepmother
▪ Sanction of the Court
▪ Prohibition of Payment
Person who may be adopted (S 10)

▪ Person to be adopted must be Hindu

▪ Must not be adopted previously
▪ Must not be married and age under 15 years of
age
▪ This section need to read with section 4
(Overriding effect)
Other Conditions for the valid
adoption (S 11)
▪ Adoption who has no Son (i)
▪ Adoption who has no daughter (ii)
▪ Age of adoptive father (iii)
▪ Age of adoptive mother (iv)
▪ Simultaneous adoption
▪ Must be actually given and taken