The Requisites of a Valid Adoption

In one line

Four requisites, in section 6, and the detail of each is in sections 7 to 11.

Section 6: the four requisites

No adoption shall be valid unless:

(i) the person adopting has the capacity, and also the right, to take in adoption;

(ii) the person giving in adoption has the capacity to do so;

(iii) the person adopted is capable of being taken in adoption; and

(iv) the adoption is made in compliance with the other conditions mentioned in the Chapter.

That is the skeleton of any answer. Four requisites, then the sections that fill each in: 7 and 8 for the first, 9 for the second, 10 for the third, 11 for the fourth.

Note the words "capacity, and also the right" in clause (i). Capacity is personal, sound mind and majority. The right is what section 11 controls, by forbidding a person who already has a son to adopt a son.

Section 7: capacity of a male Hindu

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

The proviso: if he has a wife living, he shall not adopt except with the consent of his wife, unless the wife:

• 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.

The Explanation: if he has more than one wife living, the consent of all the wives is necessary, unless the consent of any one of them is unnecessary for one of the three reasons above.

Two points. The consent is a condition of validity, not a formality: an adoption without it is void under section 5. And the three excuses are exhaustive: a wife who has deserted him, or who is simply refusing, must still consent.

Section 8: capacity of a female Hindu

Section 8 was substituted by Act 30 of 2010 with effect from 31 August 2010, and the change is the largest in this chapter.

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

The proviso: if she has a husband living, she shall not adopt except with the consent of her husband, unless the husband has completely and finally renounced the world, has ceased to be a Hindu, or has been declared by a court to be of unsound mind.

What the 2010 substitution changed

Before 31 August 2010, section 8 allowed a female Hindu to adopt only if she was unmarried, or a widow, or divorced, or her husband fell within one of the three exceptions. A married woman living with her husband could not adopt at all: only he could, with her consent.