THE HINDU ADOPTION AND MAINTENANCE ACT, 1956
8. CAPACITY OF A FEMALE HINDU TO TAKE IN ADOPTION.-
This section has been substituted by Amendment Act of 2010 (Act 30 of 2010) (w.e.f. 31-10-2010)
Any female Hindu- who is of sound mind and is not a minor, has the capacity to take a son or daughter in adoption.
Provided that, if she has a husband living, she shall not adopt a son or daughter except with the consent of her husband unless 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.
Earlier Sec 8 was as under Any female Hindu-
a. who is sound mind,
b. who is not a minor, and
c. who is not married, or if married, whose marriage has been dissolved or whose husband is dead or 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. has the capacity to take a son or daughter in adoption.
It means that before Amendment Act 2010, a female could adopt a son or daughter in adoption if she was unmarried or after her marriage was dissolved or became widow or when her husband has completely and finally renounced the world or when her husband has ceased to be a Hindu or when her husband has been declared by a court of competent jurisdiction to be of unsound mind.
It means in case of a married woman; she cannot adopt even with the consent of her husband leaving the above noted circumstances.
ADOPTION BY MARRIED WOMAN BEFORE AMENDMENT ACT 2010
In Brajendra Singh v. State of M.P.AIR 2008 SC 1056, the Court held that, where a cripple wife was left by the husband the very next day of marriage, she lived with her parents and lived the life like a divorcee, adopted after 22 years of marriage in 1970 when the husband was still alive. In this case the Supreme Court observed that the adoption by wife is invalid. Because in case of a married woman, she cannot adopt even with the consent of her husband leaving the above noted circumstances. If there is to be an adoption, it must be made only by her husband though with her consent.
ADOPTION BY A WIDOW
BEFORE AMENDMENT 2010
A widow could take a son or daughter in adoption
AFTER AMENDMENT 2010
A widow could take a son or daughter in adoption
Adoption by an unmarried female
Adoption by a married female having living husband
Adoption by a married female having living husband
but who 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.
Adoption by a married female whose marriage has been dissolved.
Adoption by a married female whose husband is dead i.e adoption by a widow
Before Amendment 2010
A female who is of sound mind, not a minor and not married could adopt a son or daughter.
A married woman, could not adopt even with the consent of her husband.
She can adopt
She can adopt
She can adopt
After Amendment 2010
Law is same as before 2010
A married woman, can adopt with the consent of her husband.
Law is same as before 2010
She can adopt
She can adopt
ADOPTION BY A WIDOW
Before Amendment 2010
A widow could take a son or daughter in adoption
After Amendment 2010
A widow could take a son or daughter in adoption
SMT. VIJAYA LAKSHMAMMA V. B.T. SHANKER AIR 2001 SC 1424.
In Smt. Vijaya lakshmamma v. B.T. Shanker AIR 2001 SC 1424. the Supreme Court observed that when there are two co-widows, one widow alone can adopt a son without the consent of the other co-widow for the estate of the late husband. The adoption of senior widow is not illegal and the right of junior widow not divested of rights vested with her in property left behind by her husband.
RAMA CHANDRAIAH V. NARAYAN (A.I.R. 2009 N.O.C. 32 KER.)
In Rama Chandraiah v. Narayan (A.I.R. 2009 N.O.C. 32 Ker.) the Kerala High Court held that if Hindu male dies leaving behind two widows and two natural sons, the adoption by widow to herself is invalid because widow has no right to adopt a son for herself if natural sons are present.
ADOPTION UNDER VOID MARRIAGE
Under void marriages, as the marriage is void ab initio the wife enjoys a right to adopt a child without the authority of her husband. In such cases her status is like that of an unmarried woman.
But where during the continuance of a void marriage, a child is born, the child would be treated as legitimate child under Section 16 of the Hindu Marriage Act, 1955 and the wife would be incompetent to adopt any child. In presence of such a child she would not be regarded as issueless and, therefore, she could not adopt.
