Capacity to give and Capacity to take for Adotion as per HAMA

1) Who may give a child in adoption? (Capacity to give) — Section 9, HAMA #

Under Hindu law, only these persons can give a child in adoption:

A. Father — Section 9(1) #

A father can give the child in adoption only if:

• He is a Hindu (HAMA applies), and
• He has capacity (explained below), and
• He has the consent of the mother.
  Mother’s consent is mandatory, unless the mother:
  • has completely and finally renounced the world, or
  • has ceased to be a Hindu, or
  • has been declared of unsound mind by a court. (statutory exceptions)

B. Mother — Section 9(2) #

A mother can give the child in adoption if:

• the father is dead, or
• the father has finally renounced the world, or
• the father has ceased to be a Hindu, or
• the father has been declared of unsound mind by a court.

(So, normally, when the father is alive and competent, the mother alone cannot give—unless one of these conditions exists.)

C. Guardian — Section 9(3)–(5) #

A guardian can give the child in adoption only with prior permission of the court, when:

• both parents are dead, or
• parents are unknown, or
• the child has been abandoned, or
• the parents are incapable of giving the child.

Court permission rule: the court must be satisfied that:

• adoption is for the welfare of the child, and
• due consideration is given to the child’s circumstances and wishes (where relevant).

2) Who may take a child in adoption? (Capacity to take) — Section 6 read with Section 7 & 8, HAMA #

A valid adoption needs a person who has capacity + right + eligibility to adopt.

A. Male Hindu adopting — Section 7 #

A male Hindu may take a child in adoption if:

1. He is of sound mind,
2. He is not a minor, and
3. If he has a living wife, he must take the adoption with her consent.

Wife’s consent is not required only if she:

• has finally renounced the world, or
• has ceased to be a Hindu, or
• has been declared of unsound mind by a court.

If a man has more than one wife living, consent of all living wives is required (unless statutory exception applies to any).

B. Female Hindu adopting — Section 8 #

A female Hindu may take a child in adoption if:

1. She is of sound mind,
2. She is not a minor, and
3. She has the legal status to adopt.

She can adopt in her own right if:

• she is unmarried, or
• she is a widow, or
• she is divorced, or
• her marriage is void / she is not having a legally subsisting marriage.

If she is married and the husband is living, she generally cannot adopt in her own capacity (the husband adopts, and her consent is relevant), unless the husband:

• has finally renounced the world, or
• has ceased to be a Hindu, or
• has been declared of unsound mind by a court.

3) Key eligibility conditions that must be satisfied (important for “how may take”) — Section 11 (other conditions for a valid adoption) #

Even if a person has capacity to adopt, the adoption must satisfy these statutory conditions:

(i) No adoption of a child of the same sex if same-sex child already exists #

• If adopting a son, adopter must not already have a living Hindu son, son’s son, or son’s son’s son.
• If adopting a daughter, adopter must not already have a living Hindu daughter or son’s daughter.

(ii) Age gap rule for opposite-sex adoption — 21 years #

• If a male adopts a female child, he must be at least 21 years older than the child.
• If a female adopts a male child, she must be at least 21 years older than the child.

(iii) Same child cannot be adopted by two persons #

• The same child cannot be adopted simultaneously by two persons.

(iv) Actual “giving and taking” is essential #

• There must be an actual giving and taking ceremony/act, showing transfer of the child from the family of birth (or guardianship) to the adoptive family. (Rituals may vary; law insists on the fact of transfer.)

4) Who can be adopted? — Section 10 #

A child must be:

• a Hindu,
• not already adopted,
• unmarried (unless custom allows otherwise),
• below 15 years (unless custom allows otherwise)

1) Lakshman Singh Kothari v. Smt. Rup Kanwar (SC, 1961) #

Topic: “Giving and taking” ceremony is essential (Section 11 requirement in substance).

Facts:
The claimant said he had been adopted, but the evidence showed he was basically sent to the alleged adoptive father’s house (connected with admission to a Gurukul). There was no proved formal act/ceremony of “giving and taking” (i.e., the natural parent handing over the boy as adoption, and the adoptive parent receiving him as adoption).

Issue:
Whether an adoption is valid without proof of the essential ceremony/act of “giving and taking”, and whether mere intention/documents/physical transfer can substitute it.

Held (Rule):
The Supreme Court held the adoption invalid. It stressed that a formal act/ceremony of “giving and taking” is absolutely necessary to effect the transfer of the child from one family to another; mere intention, casual sending of the child, or documents by themselves are not enough. Delegation of the physical act is possible, but only after the parties have actually exercised volition to give and take in adoption.

2) Ghisalal v. Dhapubai (SC, 2011) #

Topic: Consent of wife is mandatory for a male Hindu adopting (Section 7 proviso).

Facts:
A man claimed he had adopted a boy. The wife (Dhapubai) contested and said her consent was not taken. Lower courts treated her presence at adoption ceremonies as enough and “presumed” consent.

Issue:
Whether wife’s consent (required by Section 7, HAMA) can be presumed merely because she was present / did not immediately object, or whether the person supporting adoption must prove affirmative consent.

Held (Rule):
The Supreme Court held the adoption not valid because mandatory consent was not proved. The Court clarified:

• When adoption by a Hindu male is challenged, the supporter must prove wife’s consent—either written evidence or proof that she actively participated with an affirmative mindset.
• Courts cannot presume consent merely from her presence at the ceremony; such presumption is conjecture.
  So, adoption failed for non-compliance with Section 7.