A mother gives her minor son in adoption though father is alive. Validity under any circumstances.

The General Rule: Father Has Priority

The Hindu Adoptions and Maintenance Act, 1956, as amended by the Personal Laws Amendment Act, 2010, enacts in Section 9(2) that both the father and the mother, if alive, have an equal right to give a son or daughter in adoption. However, this right shall not be exercised by either of them save with the consent of the other. Under the pre-2010 position, the father had the sole primary right, and the mother could give the child in adoption only in the absence or incapacity of the father. The 2010 amendment placed them on equal footing — but it did not give the mother the right to give the child unilaterally while the father is alive and competent. The requirement of the other parent's consent remains absolute.

A straightforward application of this principle compels one conclusion: a mother who gives her minor son in adoption while the father is alive, without his consent, performs an act that is void under Section 5(1) of the Act, which declares that any adoption made in contravention of the provisions of the chapter shall be void.

The Three Exceptions: When the Mother May Act Alone

The Act itself carves out three specific situations where the mother's independent power to give the child in adoption revives even while the father is biologically alive. These exceptions, found in the proviso to Section 9(2), are:

• If the father has completely and finally renounced the world by entering a religious order (yati or sanyasi) — not a mere withdrawal from family life, but a final and complete severance from worldly affairs

• If the father has ceased to be a Hindu by converting to another religion such as Islam or Christianity

• If the father has been declared by a court of competent jurisdiction to be of unsound mind — and it is critical to note that mere factual insanity is not enough; there must be a judicial declaration by a court

In any of these three circumstances, the father's right and voice are extinguished by operation of law, and the mother may give the child in adoption entirely on her own authority. In these cases, even his express dissent carries no weight; as the Act provides, in these cases, dissent of the father is of no consequence.

A Crucial Distinction: Factual Insanity vs. Judicial Declaration

The distinction between factual insanity and judicial declaration of unsound mind is not a mere technicality — it is a substantive safeguard. The Act is explicit that if the father is in fact of unsound mind but has not been adjudged as such by a competent court, the mother cannot give the child in adoption. The Rajasthan High Court in Dhanraj v. Suraj Bai (AIR 1973 Raj 7, affirmed AIR 1975 SC 1103) treated all the four conditions of Section 9 as mandatory and gave no room for equitable deviation. The requirement of a court declaration is designed to prevent a mother from unilaterally deciding that the father is mentally incapacitated — a determination of such gravity must have the seal of judicial authority.

The Special Case: Conversion of the Father

When the father converts to a non-Hindu religion, a notable consequence follows. It is settled in the commentary on Section 9 that on his conversion, the power to give the child in adoption passes to the mother alone, and she can exercise it without his consent and even despite his protest. This is because a person who has ceased to be a Hindu is disqualified from participating in the adoption process under the Act, which is a specifically Hindu personal law statute. Importantly, it is settled that a parent does not cease to be a Hindu by merely repudiating the faith or living an unorthodox life — formal conversion to a non-Hindu faith such as Islam, Christianity, or Zoroastrianism is necessary.

The Illegitimate Son: A Distinct Position

A separate stream of law governs the case of an illegitimate son. In such cases, since the putative father is not recognised as the legal "father" under the Explanation to Section 9 — which expressly excludes the putative father — the mother of an illegitimate child has the absolute and independent power to give the child in adoption. No consent from the putative father is required, and even if the putative father is known and acknowledges the child, he has no legal right to consent or withhold consent. Neither can he give the child in adoption himself, nor can he obstruct the mother from doing so.

Summary of Valid Circumstances

To state the legal position with precision: a mother giving her legitimate minor son in adoption while the father is alive will be valid only in the following circumstances:

The Act leaves no room for expansion of these exceptions by courts or by equitable reasoning. When the conditions under which consent may be dispensed with are specified, taking any other plea, as the Supreme Court noted in Siddaramappa v. Gouravva, would amount to adding words to the statute.