Who May give a Child in Adoption? (S. 9)

Indian Legal System > Civil Laws > Family Laws > The Hindu Adoptions and Maintenance Act, 1956 > Who May give a Child in Adoption?

In this article, we shall study the capacity of a person to give child in adoption. Section 9 of the Hindu Adoptions and Maintenance Act, 1956 deals with it.

Section 9: The Hindu Adoption and Maintenance Act, 1956:

Persons capable of giving in adoption-

(1) No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.

By Section 9(1) of the Act, only the father or mother or the guardian of a child has the capacity to give the child in adoption. The term ‘father’ means a biological father and does not include an adoptive father or stepfather. The expression “mother” means the biological mother and does not include an adoptive mother and stepmother.

Section 9 does not expressly state that the father, mother or guardian should be a Hindu in order that they may have the capacity to give the child in adoption. While section 7 and section 8 which deal with the capacity to take in adoption expressly state that the father or the mother should be a Hindu by using the expression “Male Hindu” and “Female Hindu”. But the preamble says that the Act is one relating to adoption among Hindus and not merely of Hindus. It would, therefore, appear that all the parties connected with the transaction of adoption should be Hindus. Similarly for a guardian, it is not stated that he should be a Hindu. A guardian appointed by a court for a Hindu minor need not necessarily be a Hindu. But the preamble says that the Act is one relating to adoption among Hindus and not merely of Hindus. Hence it is expected that the guardian is Hindu.

Father’s Capacity to Give in Adoption:

Section 9: The Hindu Adoption and Maintenance Act, 1956:

(2) Subject to the provisions of sub-section (3) and sub-section (4), the father, if alive, shall alone have the right to give in adoption, but such right shall not be exercised save with the consent of the mother unless the mother 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.

The term ‘father’ means a biological father and does not include an adoptive father or step-father.  The father of a legitimate child can give the child in adoption. But he (father) must be major and of sound mind. But if a child’s mother is alive, he must seek her consent for giving the child in adoption. The adoption without the consent of the mother will be invalid. The consent of the mother can be dispensed within the following three conditions:-

1. If she has ceased to be Hindu;
2. (b) If she has finally and completely renounced the world;
3. (c) If she has been declared of unsound mind by a court of competent jurisdiction

If the father is suffering from any disability given in Section 9 then he remains no longer capable of giving the child in adoption and in this case the mother can give the child in adoption.

If the mother of the child is living away under a decree of judicial separation or has been divorced by her husband, her consent cannot be dispensed with.

In Omprakash v. Des Ram 2000(1) HLR 102 P & H case, the Court held that when the mother was also present at the ceremony of adoption, the adoption was held to be valid.

Section 9(2) says that the consent of mother can be dispensed if the mother has ceased to be Hindu If on conversion mother loses all her rights over her child it may tantamount to negation of Fundamental Right guaranteed under Art. 25 of the Constitution.

Mother’s Capacity to Give In Adoption:

Section 9: The Hindu Adoption and Maintenance Act, 1956:

(3) The mother may give the child in adoption if the father 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.

So long as the father is alive or is not disqualified in any manner, the mother cannot validly give her child in adoption. The expression “mother” means the biological mother and does not include an adoptive mother and stepmother. The mother who wants to give the child in adoption should not suffer from any of the disabilities given under Section 9 of the Act.

The mother can give the child in adoption only when her husband is either:
(i) Dead; or
(ii) if living; he

(a) has completely and finally renounced the world, or
(b) has ceased to be a Hindu, or
(c) has been declared by a court of competent jurisdiction to be of unsound mind.

In Dhanraj v. Suraj Bai 1975 SC 1103 case, the Court held that if the child is given in adoption by a stepmother, the adoption is invalid.

In Ram Sakhi Kuer v. Daroga Prasad Singh AIR 1981 Patna 204 case, the Court held that after remarriage, the widow ceases to be the mother of the son and as such, she cannot give in adoption a child who was by her first husband. The Court further observed, when a widow remarries, she loses her status as a mother and dies a civil death (as per Sec.2 of the Hindu Widow’s Remarriage Act, 1856) so far as the rights and interests in the family of the previous husband are concerned. By giving in adoption, such a son from her previous husband, she deprives her previous husband of the spiritual benefits to which her previous husband was entitled from a son.

Capacity to Give a Child who is above the age of 15 years:

In Dhanraj v. Suraj Bai 1975 SC 1103 case, the Court opined that under Section 10(iv) of the Act, a person above the age of fifteen years cannot be taken in adoption unless there is custom or usage which permits such persons to be taken in adoption.

Under Section 9(3) the mother acquires the right to give the child in adoption if the father has ceased to be a Hindu. This would presuppose that the father loses his right to give in adoption, the moment he ceases to be a Hindu. Again the mother’s consent to the father giving the child in adoption is not necessary if she has ceased to be a Hindu. In other words, she loses her right even to give her consent the moment. As they are exercising right under the Act, they are Hindu at the time of giving adoption.

Guardian’s Capacity to Give Child in Adoption:

Section 9: The Hindu Adoption and Maintenance Act, 1956:

(4) Where both the father and mother are dead or have completely and finally renounced the world or have abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or where the parentage of the child is not known, the guardian of the child may give the child in adoption with the previous permission of the court to any person including the guardian himself.

The term “Guardian” includes a testamentary guardian, guardian appointed or declared by a court. A guardian cannot give the child in adoption without the prior permission of the Court. A guardian has the capacity to give the child in adoption under the following circumstances:-

1. If both the parents of the child are dead;
2. If the parents have finally and completely renounced the world;
3. The parents have been judicially declared of unsound mind;
4. If the parents have abandoned the child;
5. If the parentage of the child is unknown, e.g. in case of a foundling or refugee child;

Court’s Satisfaction:

Section 9: The Hindu Adoption and Maintenance Act, 1956:

(5) Before granting permission to a guardian under sub-section the court shall be satisfied that the adoption will be for the welfare of the child, due consideration being for this purpose given to the wishes of the child having regard to the age and understanding of the child and that the applicant for permission has not received or agreed to receive and that no person has made or given or agreed to make or give to the applicant any payment or reward in consideration of the adoption except such as the court may sanction.

The object of sub-section (5) is to prohibit trafficking in children and ensure the welfare and loving care of the child to be given in adoption. Section 17 prohibits any person from making or receiving or agreeing to make or receive any payment or other reward in consideration of an adoption of any person. Section 9(5) however permits the court to sanction some payments or reward in appropriate cases.

According to Section 9(5) the court must satisfy itself that:

1. the adoption will be for the welfare of the child;
2. the applicant for permission has not received or agreed to receive and that no person has made or given or agreed to make or give to the applicant any payment or reward in consideration of the adoption except such as the court may sanction while satisfying itself that the adoption will be for the welfare of the child.

The Court will also consider the following things before granting adoption:

1. If the child is of sufficient maturity and understanding the wishes of the child should also be consulted before granting permission by the court. There is no provision in the Act regarding consultation and knowing the wishes of the child to be given in adoption.
2. The Court will consider the physical and moral being of the child and the financial position and Social status of the proposed adopter.
3. The court will also weigh the pros and cons of two places – where the child is and where the child shall be taken.

In Shankar Kumar Das v. Supt. Jawaharlal Nehru Memorial Hospital Kalyani, AIR 1996 Cal. 264 case, the Court held that Subsection (5) postulates that an application for obtaining the permission of the court for giving the child in Adoption is required to be filed by the guardian and not by the persons who are willing to take the child in adoption. It was held that under the law, the juvenile justice Board is the guardian of the abandoned children. It is the duty of the board to look after the care and comfort of the abandoned child, although the said child may remain in the custody of some other person. A statutory duty is cast upon the juvenile board to visit the child from time to time and see that the persons having custody of the child are looking after his welfare in a proper manner. Application for the adoption of such a child can be filed by the board only, the court can permit adoption to a willing spouse.

Jurisdiction of Court:

Section 9: The Hindu Adoption and Maintenance Act, 1956:
Explanation:

(ii) “court” means the city or civil court or a district court within the local limits or whose jurisdiction the child to be adopted ordinarily resides.

Explanation (ii) attached to Section 9 gives the list of Courts which has jurisdiction in Adoption matters. The explanation says that jurisdiction of a matter related with adoptions lies with the city or civil court or a district court within the local limits of whose jurisdiction the child to be adopted. The family court has no jurisdiction to grant permission for the adoption of a child in accordance with the provisions of section 9 of the Hindu Adoptions and Maintenance Act.

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Indian Legal System > Civil Laws > Family Laws > The Hindu Adoptions and Maintenance Act, 1956 > Who May give a Child in Adoption?