Monday, 20 June 2022

Capacity of a Female Hindu to take in Adoption

 CAPACITY OF A FEMALE HINDU TO TAKE IN ADOPTION

By: Robin Pandey                                                                        Date: 03/03/2022

 Section 8 makes a radical change in the old Hindu law under which a woman had no right to take in adoption at all during the lifetime of the husband without his express consent. Even in such a case the adoption would be the husband's act and not the wife's and she could be only an agent on his behalf. The question of adoption by an unmarried female Hindu was unimaginable. This Act confers on the female Hindu a right to adopt for herself.

 Section 8 reads as follows: 

"Any female Hindu--(a) who is of sound mind, (b) who is not a minor, and () who is not married, or if married-(i) whose marriage has been dissolved or (ii) whose husband is dead, or (ii) has completely and finally renounced the world, or (iv) has ceased to be a Hindu, or (v) has been declared by a court of competent jurisdiction to be of unsound mind, has the capacity to take a son or daughter in adoption”.

 In the case of a man, the right is subject to the vetoing power of the wife or wives as the consent of wife or wives is necessary, but in the case of woman that light can be exercised absolutely during the period of her maidenhood, divorce hood, widowhood and conditionally during the continuance of marriage if her husband has renounced the world or has ceased to be a Hindu or has been declared y a court of competent jurisdiction to be of unsound mind. During the Continuance of Marriage the wife has no right to adopt except where the husband is suffering from any of the disabilities.

 Thus the wife assumes independent power of adopting a child where the husband has (a) completely and finally renounced the world, which means that he has become Sanyasi, or (b) has become a convert by embracing other religion like Christianity and Islam, or (c) has been declared to be of unsound mind by a court of competent jurisdiction. It may be noted that such a declaration must actually be obtained; merely on the basis of unsoundness of mind of the husband, the wife does not acquire the competence to adopt a child independently. 

Adoption by the Divorcee: A divorcee can adopt a child in her own right and in such a case the divorced husband stands in no relation to the child at all. However, if the divorcee later marries, the husband is in the position of step father to the adopted child whereas the female adopting will in her own right be the adoptive mother of the child.

 Adoption by the Widow: Formerly, a widow could not adopt without the consent and express authority of her deceased husband or in some cases without the consent of her sapindas. But the Act removes any such bar to an adoption by a widow. Moreover, formerly a woman could adopt only to her husband but now she can adopt for herself.

Section 8 recognizes the right of a Hindu Widow to adopt a son or daughter to herself in her own right. But such adoption will not only be to herself but also to her (deceased) husband. The effect of adoption by a widow of a son or daughter will be to clothe the adopted son or daughter with all the rights of a natural born son or daughter in the adoptive family and to create all the ties of the child in the family (Section 12). The result is that for all purposes (subject to rules laid down in Section 12) the adoptee in effect becomes the son or daughter not only of the widow but of her deceased husband as well. The adoptee acquires the same status as that of a natural-born child with all the consequences and incidents of that status. As such, the deceased husband becomes the adoptive father of the child adopted and not a step father.

It is to be noted that on adoption by a widow, the adopted son becomes the son of the deceased adoptive father and the position under the old Hindu law as regards ties in the adoptive family is not changed, Ankush Narayan v. Janabai. The provision that a widow can now adopt a son or daughter to herself in her own right only indicates the unequivocal right and freedom or the widow to adopt without the express consent and authority of the deceased husband or the consent of sapindas. 

Adoption by Married woman during the subsistence of Marriage (in the lifetime of her husband): A married woman cannot adopt at all during the subsistence of the marriage except when her husband 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. If the husband is not under such disqualification the wife cannot adopt even with the consent of the husband whereas the husband can adopt with the consent of the wife, Sitabai v. Ramachandra.

CHANGED POSITION OF LAW AFTER 2010 AMENDMENT 

The newly enacted Section 8 reads as under:

Any female Hindu who is of sound mind and is not a minor has the capacity to take a son or daughter in adoption:

 Provided that, if she has a husband living, she shall not adopt a son or daughter except with the consent of her husband unless the husband 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."


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