The Requisites of a Valid Adoption

After the substitution, section 8 is the mirror of section 7. A married woman may adopt with her husband's consent, exactly as a married man may adopt with his wife's.

That is the point to make in any answer about equality under the Act, and it is a change most textbooks predate.

Section 9: who may give in adoption

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

Sub-section (2), also substituted in 2010: subject to sub-section (4), the father or the mother, if alive, shall have equal right to give a son or daughter in adoption, provided that neither may exercise that right without the consent of the other, unless the other 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.

Sub-section (3) was omitted by the same amendment. Before 2010 the father alone had the right to give in adoption, with the mother's consent, and the mother could give only if the father was dead or within the exceptions. The substituted sub-section (2) makes the right equal.

Sub-section (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 of unsound mind, or where the parentage of the child is not known, the guardian may give the child in adoption with the previous permission of the court, to any person including the guardian himself.

Sub-section (5). Before granting that permission the court shall be satisfied:

• that the adoption will be for the welfare of the child, due consideration being given to the wishes of the child having regard to the child's age and understanding; and
• that the applicant has not received or agreed to receive, and that no person has made or given or agreed to make or give, any payment or reward in consideration of the adoption, except such as the court may sanction.

The Explanation provides that "father" and "mother" do not include an adoptive father and an adoptive mother; that "guardian" means a person having the care of the person of the child, or of both his person and property, and includes a guardian appointed by the will of the child's father or mother and one appointed or declared by a court; and that "court" means the city civil court or the district court within whose jurisdiction the child ordinarily resides.

The Explanation's first limb is examinable: an adoptive parent cannot give the adopted child in adoption again, because he is not a "father" or "mother" for the purposes of section 9.

Section 10: who may be adopted

No person shall be capable of being taken in adoption unless:

(i) he or she is a Hindu;

(ii) he or she has not already been adopted;

(iii) he or she has not been married, unless there is a custom or usage applicable to the parties which permits married persons to be taken in adoption; and

(iv) he or she has not completed the age of fifteen years, unless there is a custom or usage applicable to the parties which permits persons who have completed fifteen to be taken in adoption.

Four conditions, and the last two are the ones that carry an exception. Custom may save a married person or a person over fifteen, and nothing else in this section may be excused. The custom must satisfy section 3(a), and the burden of proving it lies on the party asserting it.

Condition (i) means a non-Hindu child cannot be adopted under this Act. That is the whole reason for the chapter on [Adoption by Persons of Other Religions: the Juvenile Justice Act and the CARA Regulations].

Section 11: the other conditions

Six conditions, and this is the section that decides problem questions.

(i) If the adoption is of a son, the adoptive father or mother must not have a Hindu son, son's son or son's son's son living at the time of the adoption, whether by legitimate blood relationship or by adoption.

(ii) If the adoption is of a daughter, the adoptive father or mother must not have a Hindu daughter or son's daughter living at the time of the adoption, whether by legitimate blood relationship or by adoption.

(iii) If the adoption is by a male and the person adopted is a female, the adoptive father must be at least twenty-one years older than the person adopted.

(iv) If the adoption is by a female and the person adopted is a male, the adoptive mother must be at least twenty-one years older than the person adopted.

(v) The same child may not be adopted simultaneously by two or more persons.

(vi) The child must be actually given and taken in adoption by the parents or guardian concerned, or under their authority, with intent to transfer the child from the family of its birth, or in the case of an abandoned child or a child of unknown parentage from the place or family where it has been brought up, to the family of its adoption.

The proviso to clause (vi): the performance of dattahomam shall not be essential to the validity of an adoption.

How to use section 11

Five things to notice, and each of them decides a problem.

Conditions (i) and (ii) are about what the adopter already has, and they are sex-specific. A person with a son may still adopt a daughter; a person with a daughter may still adopt a son. The bar is only against a second child of the same sex, counting three generations down for sons and two for daughters.

The twenty-one year gap applies only to opposite-sex adoptions. A man adopting a boy, or a woman adopting a girl, is under no age-gap requirement at all. That asymmetry is deliberate and it is the single most reliable trick question in the subject.

Condition (v) stops two unrelated people adopting the same child at once. It does not stop a husband and wife adopting together, because that is one adoption into one family.

Condition (vi) requires an actual giving and taking. The physical act of transfer, with the intent to transfer the child from one family to the other, is essential. An agreement to adopt, however formal, is not an adoption without it.

The proviso abolishes the ceremony. Dattahomam is not required. Read with condition (vi), the position is that the Act needs the act and not the rite.

A worked example

MU's February 2023 problem

Amar, while a bachelor, adopted a son S. Asha, while unmarried, adopted a daughter D. Amar and Asha then married each other. Can Amar adopt a daughter after the marriage? What is the relationship between Amar and D, and between Asha and S?

Can Amar adopt a daughter? Look at section 11(ii). Amar has no daughter of his own. But Asha, whom he has married, has an adopted daughter D. By section 12, D is deemed to be Asha's child for all purposes, and on the marriage Amar becomes D's step-father. The condition in section 11(ii) is that the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter living. Whether D counts against Amar turns on whether she is his daughter, and she is his wife's daughter rather than his. There is a further and simpler obstacle: by section 7, Amar now has a wife living, so he cannot adopt at all except with Asha's consent. The safe answer states section 7's consent requirement, then section 11(ii), and reasons the second point openly.

The relationships. By section 12, an adopted child is deemed the child of the adoptive parent for all purposes from the date of the adoption. So S is Amar's son and D is Asha's daughter. On the marriage, S becomes Asha's step-son and D becomes Amar's step-daughter. Adoption by one spouse before the marriage does not make the child the other spouse's child; it makes the other spouse a step-parent. That is the answer the examiner wants.

MU's December 2019 problem

A, an unmarried Hindu girl of twenty-five, wants to adopt a five-year-old boy. B, a Hindu girl of twenty-seven, wants to adopt a girl of three.

A. She is a female Hindu, of sound mind, not a minor, and unmarried, so section 8 gives her capacity with no consent required. The child is male and she is female, so section 11(iv) applies: she must be at least twenty-one years older. She is twenty-five and he is five, a gap of twenty years. The adoption is invalid, and by section 5 it is void.

B. She is twenty-seven adopting a girl of three. Both are female, so no age gap is required at all: conditions (iii) and (iv) apply only to opposite-sex adoptions. Provided she has no Hindu daughter or son's daughter living, under condition (ii), the adoption is valid.

That pair is the perfect illustration of the asymmetry, and it is almost certainly why the examiner set them together.

What it does NOT mean

Section 11(iii) and (iv) do not impose an age gap in every adoption. The twenty-one year gap applies only where the adopter and the child are of opposite sexes. A man adopting a boy, or a woman adopting a girl, is under no age-gap requirement at all.

Condition (i) does not stop a person who has a son from adopting. It stops him from adopting a son. He may still adopt a daughter, and the holder of a daughter may still adopt a son.

A wife's consent is not a formality. Without it, and outside the three excuses in the proviso to section 7, the adoption is void under section 5.

The three excuses are not open-ended. Renunciation of the world, ceasing to be a Hindu, and a court declaration of unsound mind. A wife who has deserted, or who is merely refusing, must still consent.

Custom does not save every defect in section 10. It saves only conditions (iii) and (iv), a married person and a person over fifteen. It cannot make a non-Hindu child adoptable, and it cannot allow a second adoption of the same child.

Dattahomam is not required. The proviso to section 11(vi) says so, and what is required instead is the actual giving and taking with intent to transfer.

An adoptive parent is not a "father" or "mother" under section 9. By the Explanation he cannot give the adopted child in adoption again.

Quick revision

• s.6: four requisites, the adopter's capacity and right, the giver's capacity, the child's capability, and compliance with the other conditions.
• s.7: any male Hindu of sound mind and not a minor may adopt; if he has a wife living he needs her consent, and the consent of all wives where there are several, unless a wife has renounced the world, ceased to be a Hindu, or been declared of unsound mind by a court.
• s.8, substituted 31-8-2010: the mirror provision for a female Hindu. Before that date a married woman could not adopt at all while her husband lived.
• s.9: only the father, mother or guardian may give. Since 2010 the parents have an equal right, neither exercising it without the other's consent, subject to the same three excuses. A guardian may give only with the court's previous permission, and s.9(5) requires the court to be satisfied of the welfare of the child, to consider the child's wishes, and to find that no payment has been made or agreed.
• s.10: the child must be a Hindu, not already adopted, not married and under fifteen, the last two subject to a proved custom.
• s.11: no second child of the same sex; a twenty-one year gap only for an opposite-sex adoption; no simultaneous adoption by two persons; an actual giving and taking with intent to transfer; and dattahomam is not essential.

Test yourself

1. When must a Hindu male obtain his wife's consent to an adoption, and when is it excused? Whenever he has a wife living, by the proviso to section 7. It is excused only if she has completely and finally renounced the world, has ceased to be a Hindu, or has been declared by a court of competent jurisdiction to be of unsound mind. Where there is more than one wife, all must consent unless one of the three excuses applies to a particular wife.

2. A Hindu woman of twenty-six wishes to adopt a boy of six. Is the adoption valid? No. Section 11(iv) requires an adoptive mother adopting a male to be at least twenty-one years older than the child. The gap here is twenty years, and by section 5 the adoption is void.

3. When may a guardian give a child in adoption? Under section 9(4), where both parents are dead, have finally renounced the world, have abandoned the child, or have been declared of unsound mind, or where the parentage is unknown. He needs the previous permission of the court, which must be satisfied under section 9(5) that the adoption is for the child's welfare, that due consideration is given to the child's wishes, and that no payment or reward has been made, given or agreed except such as the court may sanction.

4. What did the amendment of 2010 change in this chapter? It substituted section 8, so a married woman may now adopt with her husband's consent, and substituted section 9(2) while omitting section 9(3), so the father and mother now have an equal right to give a child in adoption, neither exercising it without the other's consent.