Indian Legal System > Civil Laws > Family Laws > The Hindu Adoptions and Maintenance Act, 1956 > The Adoption by a Hindu Female
Section 8 of the Hindu Adoption and Maintenance Act, 1956 deals with the adoption by Hindu female.
Section 8: The Hindu Adoption and Maintenance Act, 1956:
Capacity of a female Hindu to take in adoption-
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.
The act has empowered the Hindu female to adopt to herself in her own right. This right is not available to a married woman whose marriage is still subsisting.
Adoption by Hindu Female (Unmarried)
Under this Section, a Hindu female who is not married can take a boy or girl or both in adoption subject to Section 11(IV). If she subsequently gets married her adopted child will be treated as step-son or step-daughter of her husband. However, she will continue to be the adoptive mother of the adopted child.
There is no bar against the husband making an adoption provided his wife gives consent. The wife may not give consent because she is already having a son/daughter, but if she gives consent the adoption cannot be invalid on by reason of the existence of the wife’s son or daughter. Now there are two types of children in the family. The child adopted by the Hindu female will continue to be the child of Hindu female only. However, the child adopted by her husband after marriage with the consent of the wife will be the adopted child of both the spouses. This distinction becomes necessary when the husband and wife die leaving behind properties and the question of succession to properties arises.
In Narinderjit Kaur v. Union of India, AIR 1997 P&H 280 case, the Court held that where a child was given in adoption willingly by natural parents and was taken in adoption by adoptive mother through her attorney, it was held to be a valid adoption. It was also held that the subsequent marriage of adoptive mother does not invalidate adoption.
Adoption by Hindu Female (Married)
A married woman cannot adopt at all during the subsistence of her marriage even with the consent of her husband. A married woman may adopt in the following circumstances:
- when her husband has completely and finally renounced the world
- the husband has ceased to be a Hindu;
- the husband has been declared by a court of competent jurisdiction to be of unsound mind.
There is gender bias against a married woman in Section 8. As per SEction 7 married man has been given permission to adopt with consent of wife while there is no such provision by which a married woman can adopt even with the consent of her husband.
In Malti Roy Chowdhury v. Sudhindranath Majumdar, AIR 2007 Cal 4 case, the Court held that Malti has adopted the child with the consent of her husband. Under the Hindu Adoption and Maintenance Act, it is invalid adoption. Further Court observed that while there is no denying the fact that the Hindu Adoption and Maintenance Act, has considerably improved the position of women with respect to their right to adopt, there still exists a bias based on gender as well as marital status.
In Lalitha V. Union of India, A.I.R 1991 Karnataka 186 case, the Court held that Sec 8 of the Hindu Adoption and Maintenance Act, 1956 conferring the right to adopt covers women who are single in status. A married woman stands outside that class. The right of a woman in married status is covered by Sec.7 of the Act. As a woman in married status falls into a different class she cannot complain of discrimination or violation of Art. 14 of the Constitution.
In Dashrath Ramchandra Khairnar (1976)79 Bom. L.R. 426 case, the Court held that even though the husband had, by executing an agreement, consented to his wife’ adopting a son, yet the adoption was held to be invalid.
From the above explanation we can conclude that If both husband and wife are ready to adopt with each others consent and if valid adoption is to be made, it must be made by her husband with her consent.
Adoption by a Wife of Void and Voidable Marriage:
If the marriage is void under Section 11 of the Hindu Marriage Act, the wife is entitled to adopt without the consent of her husband. Her position is the same as that of an unmarried woman.
While the wife of the voidable marriage is a lawful wife unless and until the marriage is avoided and so long as the marriage subsists she cannot make an adoption unless the husband is disqualified. The adoption by the wife of a voidable marriage will be null and void.
Adoption by a Divorced Wife:
After divorce the wife does not remain to be a wife at all. She acquires independent status. She has the capacity to take a child in adoption, if otherwise eligible. Her position is like that of an unmarried female.
Adoption by Widow:
After the passing of the Hindu Adoption and Maintenance Act, 1956, the position of the window has changed. Formerly, a widow could not adopt without the consent and express authority of her deceased, husband or in some cases without the consent of her Sapindus. But the Act removes any such bar to an adoption by a widow. Moreover, formerly a woman could adopt only to her husband but now she can adopt for herself. Now she is the adoptive mother of the child in her own right. The theory of ‘relation back’ has been expressly abolished.
In Sawan Ram v. Kalawati, AIR 1967 SC 1761 case the Court held that if a son is adopted by a female Hindu, who is married and whose husband is dead, or has completely and finally renounced the world, or has been declared by a Court of competent jurisdiction to be of unsound mind, the son adopted by the Hindu female particularly the Hindu widow would be deemed to be the son of her late husband also.
In Chandrasekhra v. Kulandaivalu, AIR 1963 SC 185 case, the Court held that assent of Sapindas is necessary because of supposed incapacity of widow for independent action, and not by reason of the effect of adoption upon proprietary rights of coparceners or reversioners property considerations are no more paramount in the case of an undivided family than in case of divided family.
In K. Laxmi Narayan Subudhi V. K. Padmanav, A.I.R 1973 Orissa 3 case, the main question raised was whether the widow of a Hindu could adopt a son while her own son died leaving behind his widow. As per traditional Hindu law, such a widow is disqualified from making an adoption on the ground that no sooner the son left behind his own widow, the power of the senior widow to take a son in adoption comes to an end. Mishra. J. rejected this view and held that there is no dispute that the widow has a statutory right to adopt. Even if the contention that in law the capacity of the widow to adopt to her husband was extinguished under the old law, by virtue of the right conferred under the Adoption Act, she was entitled to make the adoption.
Widow’s Rights to Adopt in the Presence of Daughter-in-Law:
In Ashabai Kate v Vithal Bhika Nade, AIR 1990 SC 670 case, a father and son died in quick succession both leaving behind their widows. The widowed daughter-in-law delivered a posthumous female child and remarried. The widowed mother-in-law adopted a son soon after the remarriage of the daughter-in-law, but the same was held not to be valid. According to the court, in the presence of the daughter-in-law, the widowed mother-in-law had no right to adopt and this right did not revive even on the daughter-in-law’s remarriage.
In Gurunath v Kamlabai, AIR 1955 SC 206 case, the Court opined that ‘The interposition of a grandson or the son’s widow, competent to continue the line by adoption brings the mother’s power of adoption to an end.’
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