The Changes brought by Personal Laws Amendment Act, (Act 30 of 2010) are as follows:
Under Sec. 7 of the Act the capacity of a male Hindu to take in adoption is subject to a rider pertaining to the consent of wife of male Hindu. The lack of consent from the part of wife makes an adoption illegal. It is to be highlighted that under unamended sec. 8 of the Act the capacity of a female Hindu to take in adoption was not subject to the presence of consent of husband of the adopting female.
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ADVERTISEMENTS:
This shortcoming was removed by the Personal Laws Amendment Act, made in 2010. Before this amendment any female was competent to take in adoption except in the conditions mentioned in the unamended Sec. 8 (a) to (c). The requirement of consent given by husband in case the husband of the wife is alive was not necessary. This lacuna has been supplied by this amendment. Now a female Hindu can only take in adoption with prior consent of her husband if she is married and her husband is alive.
Whether Adoption is Personal or For Her Husband:
When an adoption is made by a Hindu female during the lifetime of her husband, it is always taken to be an adoption for the husband because the female could adopt only when the husband suffers from any disability as pointed out in Section 8(c). If a Hindu female adopts a child before her marriage or after her marital relations have come to an end either on account of his death or dissolution of marriage or after the marriage has been declared null, then under these conditions any adoption made by her would be personal.
In Brajendra Singh v. State of M.P., the Court held that, where a cripple wife was left by the husband the very next day of marriage, she lived with her parents and lived the life like a divorcee, adopted after 22 years of marriage in 1970 when the husband was still alive.
In this case the Supreme Court observed that the adoption by wife is invalid. Because in case of a married woman, she cannot adopt even with the consent of her husband leaving the above noted circumstances. If there is to be an adoption, it must be made only by her husband though with her consent.
ADVERTISEMENTS:
In Smt. Vijaya Lakshmamma v. B.T. Shanker, the Supreme Court observed that when there are two co-widows, one widow alone can adopt a son without the consent of the other co-widow for the estate of the late husband. The adoption of senior widow is not illegal and the right of junior widow not divested of rights vested with her in property left behind by her husband.
In Rama Chandraiah v. Narayan, the Kerala High Court held that if Hindu male dies leaving behind two widows and two natural sons, the adoption by widow to herself is invalid because widow has no right to adopt a son for herself if natural sons are present.
Under void marriages, as the marriage is void ab initio the wife enjoys a right to adopt a child without the authority of her husband. In such cases her status is like that of an unmarried woman. But where during the continuance of a void marriage, a child is born; the child (would be treated as legitimate child under Section 16 of the Hindu Marriage Act, 1955 and the wife would be incompetent to adopt any child. In presence of such a child she would not be regarded as issueless and therefore she could not adopt.
There may be a circumstance when a Hindu female could adopt several sons or daughters which is not possible at all for a Hindu male, for example, a Hindu female during her maidenhood adopts a son and thereafter marries.
ADVERTISEMENTS:
Her husband being issueless after sometime adopts a son with the consent of the wife who had already brought the adopted son in the family. The husband could do it because the relationship between him and the adopted son of the wife was that of step-son. In this way the Hindu female could have two validity adopted sons.
Similarly, where the husband died issueless in the above case and the wife adopts a son on behalf of her deceased husband, the adoption would become valid, as the second adoption is on behalf of her deceased husband and such adopted son would be treated as his real son. In this case the first adoption was made by her during her maidenhood and after the change in the status she again adopted a child, that too on behalf of her deceased husband, hence both the adoptions remained valid.
In the same manner, if after the death of her husband, she marries another husband, who also dies issueless, she could adopt yet another son on behalf of the second deceased husband as well. Thus the Act contemplates a situation under which a woman can make several adoptions whereas a male could adopt only once. This part of law is anomalous and could give rise to a number of complications.
Illustrations:
(1) W, an unmarried woman adopts a son D. After sometime she marries with A. A dies issueless. Subsequently W adopts a son S for her husband A. Although D is with her the adoption of S is valid.
(2) In the above illustration, if W marries another husband B, who also dies issueless, and she subsequently adopts M for B, the adoption of M would also be valid.
In the above two illustrations it is worthwhile to note that all the adopted sons of W would be taken as her real sons and the sons adopted for different husbands would be treated as the son of the respective husbands.
The right of adopting a child by a person male or female has been described under sub-sections (1) to (4) of Section 11.