ADOPTION

Under diff. systems of law

Not recognized by Mohammedan/parsi law
Only by hindu law but caste/custom/family may prohibit adoption
if proved and courts will give effect
Different forms of adoption
Ancient hindu law
Law
5 kinds of adopted sons
out of 12 total sons

Modern Hindu
2 kinds

Purpose/object of adoption- twofold

Traditional/religious purpose- to secure spiritual benefit to
adopter & his ancestors by having a son for the purpose of
offering pindas (funeral cakes), oblation of food, libation of
waters by adopted son to adopter & ancestors.
Secular purpose
There is confusion in the minds of Judges relating to purpose
Section 6: Requisites of valid Adoption
Capacity to adopting and right, to take in adoption (Section
7 8)
Capacity to give in adoption (Section 9)
Person adopted capable for adoption (Section 10)
Other conditions (Section 11)

Capacity of male Hindu (Sec 7)

Completed the 18 years of age
Minor adopting a child will be void ab initio
No ratification for such adoption
After attending majority may readopt
Unsound Mind
Strong presumption in favor of sanity/soundness
No adjudication of the insanity by court is necessary
But burden of proof may shift where it is shown in
inquisition adoptive father have been lunatic
Smt. Gopi v Madanlal AIR 1970 Raj 190

Capacity of male Hindu (Sec 7)

Consent of wife (Proviso to Section 7)
Wifes consent is necessary
Consent can be inferred from facts and circumstances of
the case

Prominent part in ceremonies (Gishlal v Dhupabai AIR 2011

sc 644)
No active participation may invalidate the adoption
Consent not required
Wife finally renounced the world
Ceased to be Hindu (by conversion to any other religion)
Wife is declared unsound mind by court
Has more than one wife, consent would be necessary from
all

Capacity of male Hindu (Sec 7)

Competency and widowed daughter in law capable of adopting
child. (Bhima Kotha Dalai v Sarat Chandra Kotha Dalai AIR
1988 Ori 14 )
Consent is not contrary or in violation of Article 14 of Constitution.
(Lalitha Abhyankar vs union of India Air 1991 SC 188

Capacity of female Hindu (Sec 8)

Personal Law Amendment Act 2010
Sound Mind, Major
Consent of Husband
Exception
Renounced the world
Cease to be a Hindu
Unsound Mind
Adoption by widow
Previously not permitted
Doctrine of relation back
Abhishek Sharma v State of UP AIR 2009 ALL 77
Persons Capable of giving in Adoption (Section 9)
Father
Mother
Stepmother
Sanction of the Court
Prohibition of Payment
Person who may be adopted (S 10)
Person to be adopted must be Hindu
Must not be adopted previously
Must not be married and age under 15 years of age
This section need to read with section 4 (Overriding effect)
Other Conditions for the valid adoption (S 11)

Adoption who has no Son (i)

Adoption who has no daughter (ii)
Age of adoptive father (iii)
Age of adoptive mother (iv)
Simultaneous adoption
Must be actually given and taken