Under the old Hindu law, the power to give the son in adoption vested in the natural father and mother. Thus the power vested in a person, who had dominion over the child. Only natural father and mother were included in this category. But such person must be of sound mind and must have attained the age of discretion. The son thus given, according to Manu, was called an adopted son.
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ADVERTISEMENTS:
The father could give away the son in adoption even against the wishes of his wife, but the mother could not do so against the wishes of her husband. After the death of the husband the widow in absence of express prohibition of her husband could give the son in adoption. Thus the father, had the absolute right which he seldom exercised without the consent of his wife. During the lifetime of her husband, the wife herself could not give away her son in adoption nor could consent to give the son in adoption.
She could give the son in adoption after the death of her husband or on his permanent non-traceability or on his entering into a different religious order or on his becoming a convert. But the right could only be exercised by her if she was not expressly forbidden to do so. No other relation could give the son in adoption. The step-mother or a brother could not give a step-son or a brother in adoptions. The grandfather or any other relative could not give the son in adoption, A Hindu female could not give her illegitimate son in adoption.
Any person who became a convert could give the son in Adoption although being a convert he himself could not perform the religious ceremonies relevant in the context of giving away. He could delegate the power of giving away to a person who was Hindu. On remarriage a Hindu widow could not give away a son in adoption born from her former Husband.
Present Law:
Section 9 of the Hindu Adoption and Maintenance Act, 1956 prescribes the capacity of persons, who could give the child in adoption to another person. Ibis sections runs as follows—
ADVERTISEMENTS:
“Persons capable of giving in adoption—
(1) No person except the father or mother or the guardian of the child shall have the capacity to give a child in adoption.
(2) Subject to the provisions of sub-section (4) the father or the mother if alive, shall have equal right to give a son or daughter in adoption: Provided that such right shall not be exercised by either of them save with the consent of the other unless one of them 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.
(3) [Omitted].
ADVERTISEMENTS:
(4) where both the father and mother are dead or have completely and finally renounced the world, or have abandoned the child or have been declared by a court of competent jurisdiction to be of unsound mind or where the parentage of the child is not known, the guardian of the child may give the child in adoption with the previous permission of the court to any person including the guardian himself.
(5) Before granting permission to a guardian under sub-section (4) the court shall be satisfied that the adoption will be for the welfare of the child, due consideration being for this purpose given to the wishes of the child having regard to age and understanding of the child and that the applicant for permission has not received or agreed to receive and that no permission has made or given or agreed to make or give to the applicant, any payment or reward in consideration of the adoption except such as the court may sanction.
Explanation:
For the purposes of this section
(i) The expression ‘father’ and ‘mother’ do not include an adoptive father and fan adoptive mother; and
(ii) ‘Guardian’ means a person having the care of the person or a child or of both his person and property and include;
(a) A guardian appointed by the will of the child’s father or mother, and
(b) A guardian appointed or declared by a court;
(iii) ‘Court’ means the city civil court or a district court within the local limits of whose jurisdiction the child to be adopted ordinarily resides.
Under the section three categories of persons have been given the right to give a child in adoption and in order of preference they are (1) Natural father Natural mother and (3) the guardian (whether testamentary or appointed by the court.)
The father has a preferential right but subject to the concurrence of the mother. So far as the father is alive and is capable of giving the child in adoption the mother has no right to give the child, but her consent is necessary in effecting adoption by father. The term ‘father’ does not include adopted father. If the father is suffering from any of the disabilities mentioned in Section 9, i.e., unsoundness of mind, conversion, complete and final renunciation of the world, then he remains no longer capable of giving the child in adoption and in this case the mother can give the child in adoption.
The consent of the mother is essential for the father to give the child in adoption. In absence of such a consent the adoption is invalid. In Deen Dayal v. Sanjeev Kumar, adoption deed was registered but the consent of natural mother was not taken and she was neither a party to adoption. The court held that the consent of the mother is essential for the father to give the child in adoption. In absence of such consent the adoption is invalid. The consent of the mother is not necessary if she
(i) Has completely and finally renounced the world; or
(ii) Has ceased to be a Hindu; or
(iii) Has been declared by the court of competent jursidiction to be of unsound mind.
In case of a decree of divorce or nullity between the husband and wife the child born to them could not be given in adoption by the father alone even if child is living with the father. The consent of the mother of the child would be essential in such cases also, without which the adoption would be invalid.
The section provides for the consent of the mother in order to make adoption valid. A wife after having been divorced or against whom a decree of nullity is passed, remains the mother of the child and hence the consent of the mother would be necessary to enable the father to give the child in adoption later.
A mother becomes competent to give the child in adoption only when her husband is—
(i) Dead or (ii) if living; he—
(a) Has completely and finally renounced the world, or
(b) Has ceased to be a Hindu, or
(c) Has been declared by a court of competent jurisdiction to be of unsound mind.
The term ‘mother’ does not include adopted Mother. A step-mother is not competent to give a step child in adoption. It is only the natural mother or father who is competent to give a child in adoption and not the step-mother.
In the absence of the parent of the child or where both the parents have completely and finally renounced the world or both have been declared to be of unsound mind, the guardian of the child, testamentary or appointed or declared by the court may, with the permission of the court give the child in adoption. The Act is silent on the point as who will have the right to give the child in adoption where the parents are alive but have ceased to be Hindu.
Although there is a provision as to who will exercise the right of giving the child in adoption when one of the parents has become convert. In such a case where both parents have become converts, the guardian of the child with the previous permission of the court could be held competent to give the child in adoption.
In case of renunciation of both father and mother the guardian alone with the previous permission of the court could give the child in adoption to anyone including himself. Thus the right of guardian to adopt a child is restricted as the prior sanction of the court is necessary for giving of the child in adoption.
The term ‘guardian’ includes the following three categories of guardians:—
(a) A guardian appointed by the will of the child’s father or mother.
(b) A guardian appointed by a court,
(c) A guardian declared by the court.
The adopted parents cannot give the adopted child in adoption. A child once given in adoption cannot further be given in adoption.
Consideration before the Court:
The section casts a duty on the court to take into account the welfare of the child before granting the permission. It should also look into the wishes of the minor keeping in view his age. The court has also to inquire as to whether the guardian has been given some promise of payment or reward for giving the child in adoption. These safeguards have been introduced probably due to the fact that the girls have also been allowed to be given in adoption, and this may in the hands of unscrupulous guardian become a means of subjecting them to prostitution.
An application by the guardian under sub-sections (4) and (5) for permission to give the ward in adoption may be made in the district court or a city civil court within the local limits of whose jurisdiction the child to be given in adoption ordinarily resides.