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Persons capable of giving in Adoption

 PERSONS CAPABLE OF GIVING IN ADOPTION

By: Robin Pandey                                                                        Date: 02/03/2022

Section 9 deals with the subject of persons who may lawfully give a son or daughter in adoption. The Section does not make any substantial changes in the law on this branch of the subject previously applicable to Hindus, except that under that law the only persons who could lawfully give a son in adoption were his father and mother. The present Section principally confines the capacity to give a son or daughter in adoption to the father and the mother of the child, but it also rules that where both the father and mother are dead or disabled, the guardian of the child can give the child in adoption with the previous permission of the court.

Section 9 reads as follows:

(1) No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption.

 (2) Subject to the provisions of sub-section (3) and sub-section (4) the father. if alive, shall alone have the right to give in adoption, but such right shall not be exercised save with the consent of the mother unless the mother 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) The mother may give the child in adoption if the father is dead or has completely and finally renounced the world or has been ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. 

(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, 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 the age and understanding of the child and that the applicant for permission has not received or agreed to receive and that no person has made or given agreed to make or give to the applicant any payment or award in consideration of the adoption except such as the court may sanction.

 Explanation: For the purposes of this Section 

(i) the expressions "father" and '"mother" do not include an adoptive father and an adoptive mother; 

(ia) "guardian" means a person having the care of the person of a child or of both his person and property and includes- 

(a) a guardian appointed by the will of the child's father or mother and 

(b) a guardian appointed or declared by a court; and 

(ii) "court" means the City Civil Court or a District Court within the local limits of whose jurisdiction the child to be adopted ordinarily resides.”

 Accordingly, under Section 9, three persons have been given the right to give a child in adoption and they in order of preference are: (1) Natural father. (2) Natural mother, and (3) the Guardian (whether testamentary or appointed by the Court).

1. Natural father: 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 mother of the child has no right to give the child, but her consent is necessary in effecting an adoption by father. Father does not include adoptive father. If the father is suffering from any of the disabilities, i.e., is of unsound mind. or has bear converted to another religion or has completely and finally renounced the world then he remains no longer capable of giving his child in adoption and the mother can give the child in adoption.

The father giving his child in adoption does not enjoy this right unrestricted He can exercise his right only with the consent of his wife (mother of the child). In the absence of such consent the adoption is invalid. 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

 (ii) has been declared by a court of competent jurisdiction to be of unsound mind. 

Where a decree of divorce or nullity has been passed between the husband and wife and the child born to them is living with the father, who has given the child in adoption at his own instance without the consent of the mother or child, the adoption seems to be invalid. The Section provides for the consent or the mother in order to make a valid adoption and a wife, divorced or against whom decree of nullity is passed, remains the mother of the child and hence e consent of the mother would be necessary to enable the father to give the child adoption later. 

2. Natural Mother: After the father, the mother is competent to give the hild in adoption. The mother can exercise her right of giving a child in adoption only when her husband is: 

(1) dead;

2) living; but

 (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' in the present context does not include adoptive mother. There cannot be a second adoption of the same child. A stepmother is not a competent person to give a child (which term means adult as well as a minor) in adoption. It is only the natural parents who are competent to give an adult in adoption and not the step-mother.

3. Guardian: If the parents are dead, or have abandoned the child or the parentage of the child is not known, or when 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 the guardian appointed or declared by the court) may, with the previous permission of the court, give the child in adoption. The right of guardian is restricted one, as the prior sanction of the court for giving the child in adoption is necessary. Without the previous permission of the court a guardian cannot validly give a child in adoption. 

Guardian may be Adopter also: If the Guardian so desires he or she may adopt the child to himself or herself. 'Thus he or she would be both, the taker and giver in adoption. If the guardian intends to adopt the child, he or she must have the capacity to do so under Section 7 or 8 whichever is applicable to the case.

 Welfare of the Child is of Prime Importance: The welfare of the child concerned will outweight all other considerations. While giving his ward in adoption the guardian is not to make a profit for himself. If adoption is motivated by consideration, the Court would refuse permission as in such a case guardian may attach more value to his own interest than to the welfare of the child.  
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