7. CAPACITY OF MALE HINDU TO TAKE IN ADOPTION.-

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:

Provided that, 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 orhas been declared by a court of competent jurisdiction to be of unsound mind.

EXPLANATION: - 

If a person has more than one wife living at the time of adoption, the consent of all the wives in necessary unless the consent of any one of them is unnecessary  for any of the reasons specified in the preceding proviso.

THE CAPACITY OF A MALE HINDU TO ADOPT

This section has effected an important innovation in the old Hindu law. Now the consent of the wife or the wives, as the case may be would be necessary for a valid adoption.

Recently in Sarabjeet Kabir v. Gurumal Kaur, the Court upheld that if adoption is taken by the husband without consent of the wife, that adoption will be illegal.

There are two points to enable a male Hindu to adopt a child namely—(a) he must not be minor, (b) he must be of sound mind.

Under old Hindu Law, for purposes of adoption the age of majority according to Mitakshara School was 15 years but under the present Act

the age of majority shall be counted on the completion of 18 years.

Adoption by a male Hindu who is himself a minor is void ab initio and cannot become valid by mere ratification.

Adoption by a person of unsound mind is no adoption at all

CONSENT OF WIFE

Under the old law the consent of the wife was not necessary but under the present Act, for the first time, the consent of the wife has been made mandatory. In absence of consent the adoption becomes void but the consent could not be needed in the following cases—

(1) where the wife finally and completely has renounced the world; or

(2) she does not remain Hindu; or

(3)  she has been declared by a court of competent jurisdiction to be of unsound mind

IN KRISHNA CHANDRA SAHA V. PRADEEP DAS,

the court held that where the above three disabilities of wife have not been established the consent of such wife would be mandatory for a valid adoption. If the consent of the wife is not established, the court will declare adoption null and void

IN GHASI LAI V. DHAPUBAI

the Supreme Court held that the consent of wife envisaged in proviso of Section 7 should either be in writing or reflected by a positive act voluntarily and willingly done by her. In absence of her consent, adoption by husband would be invalid.

Where a decree of judicial separation has been passed between husband and wife, the consent of the wife would be necessary for the husband to adopt a child, because the decree of judicial separation did not bring the marriage to an end.

But under the void marriages the consent of the wife would not be necessary because in that case the wife is not a legally wedded wife and such wife does not have any legal status.

The consent of the wife may be express or implied.

The proviso to Section 7 has provided that where a person has more than one wife, the consent of all the wives would be necessary. In absence of such consent, the adoption would become void. But such consent would not disable the wives other than the senior most one to make separate adoptions on their behalf after the death of their husband

ILLUSTRATIONS

A has got three wives B, C and D. Being issueless A with the consent of,B, C and D adopts a son, P. Later on A dies. After his death C and D adopt a son separately namely M & N on their own behalf. The adoption of M and N is valid. B, was the seniormost wife, so she could not adopt as P would be treated as her own natural son. But the relationship between C, D and P was stepmotherly. Where the only son dies leaving behind his own widow, can his father (widow's father-in- law) adopt a son in presence of her widowed daughters-in-law? The reply has come from a judgement of the Orissa High Court, where it has been held that the presence of the widowed daughter-in-law would not hamper the right of the father-in-law to adopt. But the exercise of such right would not affect the widow's independent right to adopt. But it is notable in the above illustration that in case the widowed daughter-in-law adopts a child before her father-in-law does so, the subsequent right of adoption by her father-in-law would come to an end. For example

B had two sons M and N, who predeceased B, leaving behind them their widow K and P respectively. B could adopt a son after the death of M and N. But if K and P or either adopts a son before B could adopt, then the right of B to adopt comes to an end

Free consent of the parties is implicit for the validity of an adoption. Where consent to an adoption is obtained by misrepresentation, coercion, fraud, undue influence or mistake, the consent is not free; and an adoption founded on such corisent, has been held to be voidable at the option of the party whose consent was obtained in such a manner, but open to ratification by such party, provided the ratification did not prejudice others. But in another case such an adoption was held to be void ab initio