Legal Provisions regarding a person who can adopt a child in India – Explained!

Who may adopt:

In order that an adoption can be said to be valid in law, it is necessary that the person adopting has the capacity, and also the right, to take in adoption.

Every male Hindu who is of sound mind and is not has the capacity to take a son of daughter in adoption. If wife living, he shall not adopt except with the consent of his wife unless the wife has

(a) Completely and finally renounced the world, or

(b) Ceased to be a Hindu, or

(c) Been declared by a court of competent jurisdiction to be of unsound mind. (Sec. 7).

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If a person has more than one wife living at the time of adoption the consent of all the wives is necessary unless the consent of any one of them is unnecessary for any of the reasons mentioned above in (a), (b) and (c).

It should be noted that the Indian Minority Act does not apply to matters relating to adoption.

Sound mind.-The expression “sound mind” has not been de­fined in the Act. Section 12 of the Indian Contract Act, however, defines what a sound mind is for the purposes of contracting.

Section 12 reads as follows:-

“A person is said to be of sound mind for the purposes of making a contract if, at the time when he makes it, he is capable of understanding it and forming a rational judgment as to its effect upon his interest”

“A person who is usually of unsound mind but occasionally of sound mind may make a contract when he is of sound mind.”

A person who is usually of sound mind but occasionally of unsound mind may not make a contract where he is of unsound mind”

The test is-is the person capable of understanding the business and of forming a rational judgment as to its effect upon his inter­est. There being a presumption in favour of sanity, the person who relies on the unsoundness of mind must prove it sufficiently to satisfy this test. Mere weakness of mind is not sufficient, what is necessary to be proved is that infirmity of mind has been such as to disable him from understanding what he was doing. Mere loss of vigour and infirmity on account of old age is not sufficient. (Ram Sunder v. Kali Narain, 1927 Cal. 839).

Renunciation of World:

When the wife has renounced the world it is not necessary to obtain her consent before adopting a child by her husband. Renunciation is tantamount to civil death. A person does not become a sannyasi by merely declaring him­self a sannyasi or by wearing clothes ordinarily worn by san­nyasi. He must perform the ceremonies necessary for entering the class of sannyasis and without such ceremonies; he cannot be­come dead to the world.

(Baldeo Prasad v. Arya Pratinidhi SabhaJ. [1930 All. 643; Kondol Raw v. Swamulawam, 1918 Mad. 402 and Ramdhan v. Dalmir 2 I.C. 385). A sudra cannot enter the order of yati or sannyasi. [Harish Chandra v. Ativ Muhmud, (1913) 40 Cal. 545). Therefore, unless a usage to the contrary is established a sudra is not supposed to renounce the world by entering any religious order.

Capacity of female Hindu to take in adoption:

Section 8 of the Act provides for capacity of female Hindu to take in adop­tion. It lays down that any female Hindu-

(a) Who is of sound mind?

(b) Who is not a minor, and

(c) Who is not married or if married whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent juris­diction to be of unsound mind, has the capacity to take a son or daughter in adoption.

Therefore, any female Hindu who is-

(a) Of sound mind

(b) Major and

(C) unmarried

Can adopt a son of daughter. This has been an important change in the law giving wide powers to a female. Previously an unmar­ried female had no power to adopt as the adoption was intended to adopt to her husband and not to herself. A widow also had no power to adopt except under the authority given by her husband or with the consent of Sapindas of her husband or with the con­sent of the husband’s undivided coparceners.

But now after the enactment of Hindu Adoptions and Maintenance Act, 1956 no such authority is necessary for a widow. Now a Hindu unmarried woman, widow or divorcee has capacity to adopt. But a married woman has no capacity to adopt She cannot adopt even with the consent of her husband. If there is to be an adoption, it must be made by her husband with her consent However, as already pointed out, a married woman can adopt in the following three cases:

1. If her husband has ceased to be a Hindu;

2. If he has finally and completely renounced the world; or

3. If he has been declared by a court of competent jurisdic­tion to be of unsound mind.

Section 11 provides that if a fern le adopts a male child, she must be senior to the child by at least 21 years.