Thursday, June 9, 2011


In Indian society, a male spouse enjoyed the position of dominance for centuries together. This was particularly so in Hindu families.  Under the old Hindu Law, a Hindu male had an absolute right to adopt a male child and his wife did not have the locus to question his right or to object to the adoption. A wife could adopt a son to her husband but she could not do so during her husband’s life time without his express consent.  After his death she could adopt a son to him, in certain parts of India, only if he had expressly authorized her to do so.  In other parts of India, she could adopt without such authority.  However, in no case, a wife or widow could adopt a son to herself.  An adoption by a woman married or unmarried of a son to herself was invalid and conferred no legal rights upon the adopted person.  A daughter could not be adopted by a male or female Hindu.  The physical act of giving was a prime necessity of the ceremonial requirements relating to adoption. 
After India became a sovereign, democratic republic, this position has undergone a sea change.  The old Hindu Law has been codified to a large extent on the basis of constitutional principles of equality.  The Hindu Marriage Act, 1955 codifies the law on the subject of marriage and divorce.  The Hindu Succession Act, 1956 codifies the law relating to intestate succession.  The Hindu Minority and Guardianship Act, 1956 codifies the law relating to minority and guardianship among Hindus. The Hindu Adoptions and Maintenance Act, 1956 codifies the law relating to adoptions. The said Act is also a part of the scheme of codification of laws.  Once the Hindu Succession Act was passed giving equal treatment to the sons and daughters in the matter of succession it was only logical that the fundamental guarantee of equality of a status and equality before law is recognized in the matter of adoption.
The 1956 Act, now provides for adoption of boys as well as girls. An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family. The child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth and any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property including the obligation to maintain relatives in the family of his or her birth and the adopted child shall not divest any person of any estate which vested in him or her before the adoption. The adopted child should not have completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed the age of fifteen years being taken in adoption. If the adoption is by a male and  the person to be adopted is a female, the adoptive father should be at least twenty one years older than the person to be adopted. If the adoption is by a female and the person to be adopted is a male, the adoptive mother should be at least twenty -one years older than the person to be adopted.
 By virtue of the proviso to Section 7 the consent of wife has been made a condition precedent for adoption by a male Hindu.  The mandatory requirement of the wife’s consent enables her to participate in the decision making process which vitally affects the family.  If the wife finds that the choice of the person to be adopted by the husband is not appropriate or is not in the interest of the family, then she can veto his discretion.  A female Hindu  who is of a sound mind and has completed the age of eighteen years can also take a son or daughter in adoption to herself and in her own right.  A female Hindu who is unmarried or a widow or a divorcee can also adopt a son to herself, in her own right, provided she has no Hindu daughter or son’s daughter living at the time of adoption. However, if she is married a female Hindu cannot adopt a son or a daughter during the life time of her husband unless the husband is of unsound mind or has renounced the world. A married woman cannot adopt at all during the subsistence of the marriage except when 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.  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.
 By incorporating the requirement of wife’s consent in the proviso to Section 7 and by conferring independent right upon a female Hindu to adopt a child, Parliament has tried to achieve one of the facets of the goal of equality enshrined in the Preamble and reflected in Article 14 read with Article 15 of the Constitution of India.
The term “consent” has not been defined in the Act.  Therefore, while interpreting these provisions, the Court shall have to keep in view the legal position obtaining before the enactment of the 1956 Act, the object of the new legislation and apply the rule of purposive interpretation and if that is done, it would be reasonable to say that the consent of wife envisaged in the proviso to Section 7 should either be in writing or reflected by an affirmative/ positive act voluntarily and willingly done by her.  If the adoption by a Hindu male becomes subject matter of challenge before the Court, the party supporting the adoption has to adduce evidence to prove that the same was done with the consent of his wife. This can be done either by producing document evidencing her consent in writing or by leading evidence to show that the wife had actively participated in the ceremonies of adoption with an affirmative mindset to support the action of the husband to take a son or a daughter in adoption.  The presence of wife as a spectator in the assembly of people who gather at the place where the ceremonies of adoption are performed cannot be treated as her consent. In other words, the Court cannot presume the consent of wife simply because she was present at the time of adoption.  The wife’s silence or lack of protest on her part also cannot give rise to an inference that she had consented to the adoption.





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