Under the old law the consent of the wife was not necessary but under the present Act, for the first time, the consent of the wife has been made mandatory. In absence of consent the adoption becomes void but the consent could not be needed in the following cases
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(1) Where the wife finally and completely has renounced the world; or
ADVERTISEMENTS:
(2) She does not remain Hindu; or
(3) She has been declared by a court of competent jurisdiction to be of unsound mind.
In Krishna Chandra Sahu v. Pradeep Das, the court held that where the above three disabilities of wife have not been established the consent of such wife would be mandatory for a valid adoption. If the consent of the wife is not established, the court will declare adoption null and void.
Where a decree of judicial separation has been passed between husband and wife, the consent of the wife would be necessary for the husband to adopt a child, because the decree of judicial separation did not bring the marriage to an end. But under the void marriages the consent of the wife would not be necessary because in that case the wife is not a legally wedded wife and such wife does not have any legal status.
ADVERTISEMENTS:
The consent of the wife may be express or implied. For example, where the wife did not participate in the ceremony of adoption nor did she oppose the adoption, it shall not be taken that she is not opposing it on account of pressure but on the other hand it would be taken as if she has given her implied consent.
But where wife has participated in the ceremony of the adoption, there her consent shall be presumed. In Smt. Malati Roy Chowdfhury v. Sudhidranath Majumdar, the Court held that if adoption was done by husband and wife, the husband is entitled to adopt the child, but if he is married the consent of wife is must. On the other hand, wife has no capacity and she is not entitled to adopt even with the consent of her husband.
The proviso to Section 7 has provided that where a person has more than one wife, the consent of all the wives would be necessary. In absence of such consent, the adoption would become void. But such consent would not disable the wives other than the senior most one to make separate adoptions on their behalf after the death of their husband.
Illustrations:
A has got three wives В, С and D. Being issueless A with the consent of B, С and D adopts a son, P. Later on A dies. After his death С and D adopt a son separately namely M & N on their own behalf. The adoption of M and N is Valid. B, was the senior most wife, so she could not adopt as P would be treated as her own natural son. But the relationship between C, D and P was step-motherly.
ADVERTISEMENTS:
Where the only son dies leaving behind his own widow, can his father (widow’s father-in-law) adopt a son in presence of her widowed daughters-in-law? The reply has come from a judgement of the Orissa High Court, where it has been held that the presence of the widowed daughter-in-law would not hamper the right of the father-in-law to adopt.
But the exercise of such right would not affect the widow’s independent right to adopt. But it is notable in the above illustration that in case the widowed daughter-in-law adopts a child before her father-in-law does so, the subsequent right of adoption by her father-in-law would come to an end. For example:
В had two sons M and N, who predeceased B, leaving behind them their widow K and P respectively. В could adopt a son after the death of M and N. But if К and P or either adopts a son before В could adopt, then the right of В to adopt comes to an end.
Free consent of the parties is implicit for the validity of an adoption. Where consent to an adoption is obtained by misrepresentation, coercion, fraud, undue influence or mistake, the consent is not free; and an adoption founded on such consent, has been held to be voidable at the option of the party whose consent was obtained in such a manner, but open to ratification by such party, provided the ratification did not prejudice others. But in another case such an adoption was held to be void ab initio.