(i) Male:
A bachelor or a widower can take in adoption without the consent of anyone else. Even a married man could do so under the old law but now he can do so only with the consent of the wife (or, all the wives, where he has several wives). The primary condition for adoption of a son is the non-existence of a son, son’s son or son’s son’s son at the time of adoption.
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Under the old law a girl could not be adopted. Now a daughter may be adopted when there is no daughter or son’s daughter living at the time of adoption. When a daughter is adopted, the adoptive father should be older than her by at least 21 years.
(ii) Female:
ADVERTISEMENTS:
A widow may make an adoption. Under the old law the power of a widow to adopt depended upon the School of Law to which she belonged.
Mithila:
A widow could not adopt at all.
Bengal:
ADVERTISEMENTS:
A widow could adopt only with prior authority from husband conferred upon her during his lifetime.
Madras:
A widow could adopt even with the assent of her husband’s Sapindas after husband’s death.
Bombay:
ADVERTISEMENTS:
No one’s consent is necessary.
The Act of 1956 has introduced uniformity by dispensing with consent of anyone by whatever School of Law the widow may be governed.
Formerly, a maiden could not adopt. Now she can do so. A married woman cannot adopt. It is the husband that has the power in such a case but now he can exercise that power only with the consent of the wife.
The primary condition for adoption of a son is non-existence at the time of adoption of a son, son’s son or son’s son’s son. When a daughter is adopted, there should be no other daughter or son’s daughter. When a boy is adopted, the adoptive mother should be older than him by atleast 21 years.
Whether the adopter is a male or a female, attainment of majority and soundness of mind are pre-requisites for capacity to take in adoption.
Under ancient law the consent of the wife or wives was not necessary for adoption. The husband could adopt even against express dissent of the wife.
Under s. 7 any male Hindu, whether he is a bachelor, married, widower or a divorcee, is entitled to adopt. However, if he is married consent of the wife, if he has more than one wife consent of all the wives, is a pre-requisite for adoption? Without such consent the adoption is void.
Even if one of the wives is living separately without dissolution of marriage, her consent is also necessary, except for the reasons stated in the section. Bhotooram v. Ram Lai, AIR 1989 MP 198. The presence of widowed daughter-in-law will not preclude the adoption by a sonless parent. Bhima Kotha v. Sarat Chandra Kotha, AIR 1988 Ori. 14.