Section 7 of the Hindu Adoption and Maintenance Act, 1956 deals with the adoption by Hindu male.

Section 7: The Hindu Adoption and Maintenance Act, 1956:

Capacity of a male Hindu to take in adoption-

Any male Hindu who is of sound mind and is not a minor has the capacity to take a son or a daughter in adoption. Provided that, if he has a wife living, he shall not adopt except with the consent of his wife unless the wife 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.

Explanation-

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 specified in the preceding proviso.

Who can Adopt?

According to Section 7 of the Act, the adopter must be Hindu male. He may be bachelor, widower, divorcee or a married person provided he is not a minor. However, if a male is married consent of the wife is a must. There is no maximum age of adoption.

The Soundness of Mind:

According to this Section 7 of the Act, a Hindu male who wants to adopt a child must be of sound mind. It is obvious that an idiot or lunatic cannot adopt. Unsoundness of mind may be due to sickness, old age or on account of any mental disease.

The test of unsoundness of mind is whether a person is incapable of understanding the nature of the Act and its implications. A mere weakness of mind is not sufficient. A person challenging the adoption on this ground will have to prove the same. The burden of proof may, however, shift if shown for instance that the adoptive father had, on inquisition, been found to have been a lunatic. It is the time of adoption that is material to judge the soundness of mind of a person adopting.

In Mandakini v. Adinath Dey, HR 18 Cal. 69 case, the Court held that a Hindu male who wants to adopt a child must be of sound mind.

In Gopi v. Madan, AIR 1970 Raj. 190 case, the Court held that unsoundness of mind relates to a general condition of mind. No adjudication of Insanity by the court is necessary. Any condition of insanity including epilepsy, idiocy, and lunacy will come under unsoundness of mind.

In Baba Kant v. Kestenpuras 6 Berg SR 219 case, the Court held that adoption by a person in a disturbed state of mind, arising out of serious illness was not valid.

To Whom He Can Adopt?

The adopter has a right to adopt a son or a daughter. This does not mean that a person cannot adopt both a son and a daughter. While section 11 (i) and 11(ii) preclude a person from adopting two sons or daughter.

Consent of Wife for Adoption by Hindu Male (Married):

As per Section 7 of the Act, the wife’s consent must be obtained prior to or at the time of adoption but in any case, it cannot be subsequent to an act of adoption. The proviso lays down consent as a condition precedent to an act of adoption. The subsequent consent of the wife cannot validate it. The consent of the wife must be free consent. If the consent has been obtained by force, fraud or undue influence it is not a consent at all. If the wife has given consent freely, she has no right to withdraw it after adoption and the adoption will be valid. Here the expression “wife” means a lawfully wedded wife.

• If the marriage of the male is null and void, the wife has no legal status of wife and there is no need for obtaining her consent.
• In case of a voidable marriage falling under Section 12 of the Hindu Marriage Act, the wife of such a marriage will be considered a wife, as long as marriage has not been annulled by the decree of a court, and the absence of her consent for adoption would invalidate adoption.
• If there is a decree of judicial separation between the parties still the consent of wife would be necessary.
• If there has been a divorce between the spouses, the consent of the divorced wife is not required.
• If a person has more than one wives, the consent of all the wives is necessary. (This provision is there because polygamy was allowed in old Hindu law.
• If a male Hindu marries a woman of another religion, e.g. a Christian, or a Mohammedan, Parsi or Jew or makes a marriage under the special marriage 1954, the married woman has the status of a wife. The consent of such wives should also necessary for a valid adoption.
• A wife, though a minor, is nevertheless a wife. Though the wife is minor she is incapable of giving consent, but her consent is necessary for a valid adoption by the husband and so the husband cannot at all adopt when the wife is minor. A minor female herself can’t adopt, but if married, her consent is must far adoption by her husband.

In Krishna Chandra Sahu v. Pradeep Das, AIR 1982 Orissa 114 it was held by the court that the consent of the wife would be mandatory for a valid adoption.

In Mool Chand Vs. Amritabai, 1976 HLR 661 case the Court held that the consent of the wife may be express or it may be implied. If the wife was present and took part in the adoption ceremony and gave present to the adoption it was held that consent could be inferred from the circumstances.

In Bholoo Ram v. Ram Lal, AIR 1989 MP 198 case, the Court held that the consent of a wife who is living separately or leading the life of a prostitute cannot be dispensed with.

In Sawan Ram Vs. Kalawati, AIR 1967 SC 1761 case, the Supreme Court held that where a husband adopts under this Act, with the consent of his wife, the actual adoption would be by the husband but the adoption is not only to himself but also to his wife. In the same manner, it has been said by the Supreme Court 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.

Wife’s Consent When Not Necessary:

The provisions of Section 7 refer to certain circumstances when wife’s consent is not essential for the validity of the adoption. It is open, to a male Hindu to take a child in adoption even without his wife’s consent. In the following three circumstances.

Wife has completely and finally renounced the world:

The actual definition of renounciation of the world is not given in the Act. In Kishnaji v. Hanumareddi 1934 Bom. 385 case, the Court held that Renunciation amounts to civil death and it must be absolute abandonment of all property and complete and final withdrawal from all worldly affairs.

Wife ceases to be Hindu:

For conversion, she must embrace another religion. Not performing Hindu rituals doesn’t mean conversion. The burden of proof that the wife has ceased to be Hindu by converting to a non-Hindu religion lies on the husband. It is he who is seeking immunity from taking the consent of the wife, therefore, he is required to prove that the wife has converted to another religion thus, he was not obliged to take her consent.

Unsoundness of Mind

A wife’s consent is not necessary if she has been declared to be unsound mind by a court of competent jurisdiction. The declaration of the court must be prior to the adoption. If the court declares the wife as of unsound mind subsequent to the adoption, the adoption made without her consent would be invalid.

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Indian Legal System > Civil Laws > Family Laws > The Hindu Adoptions and Maintenance Act, 1956 > The Adoption by a Hindu Male

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Chapter II of the Hindu Adoptions and Maintenance Act, 1956 deals with Adoptions. Section 5 of the Act, deals with the adoptions to be regulated by the Act and Section 6 of the Act deals with the Conditions for Valid Adoption.

Prospective Nature of the Act:

Section 5: The Hindu Adoption and Maintenance Act, 1956:

Adoptions to be regulated by this Chapter-

(1) No adoption shall be made after the commencement of this Act by or to a Hindu except in accordance with the provisions contained in this Chapter, and any adoption made in contravention of the said provisions shall be void.

(2) An adoption which is void shall neither create any rights in the adoptive family in favour of any person which he or she could not have acquired except by reason of the adoption, nor destroy the rights of any person in the family of his or her birth.

Section 5(1) declares that any adoption made by or to a Hindu after the commencement of this Act is void if it is in contravention of the provisions laid down in chapter II of the Hindu Adoption and Maintenance Act, 1956. This Act is, therefore, prospective and not retrospective. It means the Act is not applicable to the adoptions done before the commencement of the Act but it is applicable to every adoption made after the commencement of the Act. After this act, even if adoption is according to old law or custom, it shall still be invalid, if it is a contravention of the provision of this Act.

By adoption, a child is completely transferred from one family to another family and a number of legal consequences arise, both in the adoptive family as well as in the family of birth. All types of relationship in the family of the birth stands snapped after a child has given for adoption. The adopted child is entitled to succession, maintenance and other legal rights in the adopted family. The adopted child becomes legally dead for biological parents.

As void adoption are no adoption in the eyes of law, they do not affect the status and the position of the adopted child in any manner. According to Section 5 (2) a void adoption will not create any rights in favour of the adopted child in the adoptive family, nor it will destroy the rights of any child in the family of his or her birth.

Conditions for Valid Adoption:

Section 6 lays down the essential conditions for a valid adoption

Section 6: The Hindu Adoption and Maintenance Act, 1956:

Requisites of a valid adoption- No adoption shall be valid unless-

(i) the person adopting has the capacity, and also the right, to take in adoption;

(ii) the person giving in adoption has the capacity to do so;

(iii) the person adopted is capable of being taken in adoption; and

(iv) the adoption is made in compliance with the other conditions mentioned in this Chapter.

Section 6 (i) lays down that the person adopting has the capacity, and also the right, to take in adoption. Section 7and Section 8 of Act deal with the capacity to adopt.

Section 6 (ii) lays down that the person giving in adoption has the capacity to do so. Section 9 of the Act deals with capacity of giving in adoption.

Section 6 (iii) lays down that the person adopted is capable of being taken in adoption. Section 10 of the Act lays down certain conditions relating to the child to be adopted.

Section 6 (iv) lays down that the adoption is made in compliance with the other conditions mentioned in this Chapter. Before adopting a child, it has to be seen that any condition given in Section 11 is not violated.

The conditions given in Section 6 are mandatory and not merely recommendatory. All the four conditions must be complied with and they are equally applicable to the case of adoption of an adult, where permissible. If the conditions given under the Act are not fulfilled, the adoption will not be valid.

In Smt. Prafulla Bala Mukherjee V. Satish Chandra Mukherjee and others A.I.R 1998 Cal. 86 case, it was held that for a valid adoption not only the person adopting should be capable of lawfully taking in adoption, but the person giving must be capable of lawfully giving in adoption and the person adopted must be capable of being lawfully taken in adoption. It is necessary that all these three conditions should be satisfied, and it is not sufficient that only one of them be satisfied.

In Krishna Chandra Sahu v. Pradeep Das, AIR 1982 Orissa 114  it was held by the court that the consent of the wife would be mandatory for a valid adoption.

In Mandaknini Vs. Adinath Dey HR 18 Cal. 69 case, the Court held that a Hindu male who wants to adopt a child must be of sound mind.

In Asha Bai Kate V. Vittal Bhika Nade, A.I.R 1990 SC 670 case, the Hon’ble Supreme Court held that on the remarriage of the son’s widow, the power of the son’s mother to adopt did not revive.

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Indian Legal System > Civil Laws > Family Laws > The Hindu Adoptions and Maintenance Act, 1956 > The Conditions for Valid Adoption

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