Who can adopt? Who can be adopted? Explain the capacities.

Who Can Adopt: The Capacity to Take in Adoption

The Male Hindu Adopter (Section 7)

Section 7 of the Act is the foundation. Any male Hindu who is of sound mind and is not a minor — that is, who has completed the age of eighteen years — has the capacity to take a son or daughter in adoption. The requirement of majority is absolute. An adoption by a minor male Hindu is void ab initio, and cannot be ratified or cured after the person attains majority. The only remedy available is a fresh adoption after majority, provided all conditions are otherwise met.

The one critical qualification — and one that the courts have enforced with great strictness — is the requirement of the wife's consent. Where the adopter has a wife living at the time of adoption, he cannot adopt except with her consent. If he has more than one wife, the consent of all of them is required. The law has specified three situations in which consent may be dispensed with: where the wife has completely and finally renounced the world, where she has ceased to be a Hindu by conversion, or where she has been declared of unsound mind by a court of competent jurisdiction.

It is important to appreciate that consent here is not a mere formality. In a landmark Supreme Court judgment delivered on January 14, 2011, an adoption made fifty-one years earlier was set aside on the precise ground that the wife's consent had not been established. The court unequivocally held that "the wife's silence or lack of protest also cannot give rise to an inference that she had consented to the adoption." Her mere presence at the ceremony as a spectator was held to be insufficient — the consent must be informed and affirmative.

The question also arises whether an illegitimate son or a physically disabled person is barred from adopting. The Act is silent on these fronts, and the answer, which flows from the plain language of Section 7, is that no such bar exists. If the person is of sound mind and has attained majority, he may adopt.

The Female Hindu Adopter (Section 8)

Section 8, as substituted by the Personal Laws Amendment Act, 2010, brought about a transformation. Before the amendment, a married woman could not adopt at all — a glaring inequality judicially recognized but incapable of being remedied without legislative intervention. The original Section 8 permitted adoption only by an unmarried woman, a widow, or a divorcee, or a woman whose husband had ceased to be a Hindu, renounced the world, or been declared of unsound mind.

After the 2010 amendment, the position is this: any female Hindu who is of sound mind and is not a minor may take a son or daughter in adoption. If she has a husband living, she cannot adopt except with his consent, subject to the same exceptions as under Section 7. The female adopter's right is now truly in equali jura — equal in legal standing to that of a male. A widow, in particular, may now adopt a son or daughter to herself, in her own right, without requiring any authority from her deceased husband or the consent of any sapindas.

An important procedural point concerns co-widows. Where a senior widow adopts a child, the consent of the junior widow is not required. In Vijaylakshmamma v. B.T. Shankar, the court confirmed that the deliberate omission from Section 8 of any requirement of a co-widow's consent was a conscious legislative choice, recognizing the woman's independent authority in this domain.

Who Can Give in Adoption: The Capacity to Give (Section 9)

Section 9, also amended by the Personal Laws Amendment Act, 2010, confers equal rights on both parents to give a child in adoption. Prior to the amendment, the right belonged primarily to the father, with only a supporting role for the mother. Today, the position is as follows: if both parents are alive, either of them may give the child in adoption, but only with the consent of the other. The consent requirement admits of the same three exceptions — renunciation, conversion from Hinduism, and judicially declared unsoundness of mind.

The section is emphatic that no person other than the father, mother, or a court-recognised guardian can give a child in adoption. This rule closes the door to uncles, grandparents, or other relatives acting on their own authority — a reform that significantly reduced the potential for exploitation.

Where both parents are dead, have completely and finally renounced the world, have abandoned the child, or have been declared of unsound mind, the guardian of the child — whether a testamentary guardian appointed by the will of a parent, or a guardian appointed or declared by a court — may give the child in adoption. But crucially, the guardian may not act unilaterally: he must obtain the previous permission of the court before doing so.

Before granting such permission, Section 9(5) directs the court to satisfy itself on three specific matters: first, that the adoption will be for the welfare of the child; second, that the child's own wishes have been ascertained having regard to the child's age and understanding; and third, that no payment or reward has been received or agreed upon in consideration of the adoption. This welfare-based gatekeeping places the child's interest at the centre of the inquiry, a principle that runs through the entire Act.

Who Can Be Adopted: The Capacity of the Child (Section 10)

Section 10 lays down four conditions, all of which must concurrently be satisfied for a person to be capable of being taken in adoption.

First, the person to be adopted must be a Hindu — a requirement understood in the wide and inclusive sense given to the word by Section 2 of the Act. The old restriction that the adoptee must belong to the same caste as the adoptive parent has been entirely abolished. Any Hindu, whether a Brahmin, a Kshatriya, a Vaisya, a Sudra, a Jain, a Buddhist, or a Sikh, may be adopted by any other Hindu, regardless of caste. In Kumar Sursen v. State of Bihar, the Supreme Court firmly declined to recognise the adoption of a Muslim child by Hindu parents, holding that however long the child might have been raised in the adoptive family, the religious qualification in Section 10(i) could not be circumvented.

Second, the child must not have been previously adopted. This restates the ancient rule of Hindu law that a person can be given in adoption only once. A second adoption of the same person is void.

Third, the child must be unmarried at the time of adoption. This condition is, however, not absolute — if there exists a custom or usage applicable to the parties which permits adoption of a married person, such adoption will be valid. The custom must, of course, satisfy the conditions of certainty, continuity, and reasonableness that any custom must meet under the Act.

Fourth, the child must not have completed the age of fifteen years at the time of adoption. Once again, the condition yields to a contrary custom. In Uma Prasad v. Padmavati, an adoption of a boy above fifteen years by Agrawals was upheld, as the parties successfully established an old and well-recognised custom governing their community that permitted such adoption. However, a mere assertion of custom is not enough — it must be proved to have been continuously and uniformly observed so as to have acquired the force of law.

Finally, there is the additional requirement embedded in Section 11 that where the adoptee is of the opposite gender to the adopter, there must be a minimum age difference of twenty-one years between them. If a male adopts a female, he must be at least twenty-one years older than her; if a female adopts a male, she must be at least twenty-one years older than him. This condition is mandatory and admits of no exception, not even custom. In Hanmant Laxman Salunke v. Shrirang Narayan Kanse, while the community's custom permitting adoption of a child above fifteen years was successfully established, the adoption was still struck down because the required age difference of twenty-one years between the adoptive mother and the adopted son was not satisfied — a clear illustration that all conditions must be simultaneously fulfilled.