3. Persons Capable of Giving and Taking in Adoption

This is the third post in Family Law-I (Hindu Law), Unit IV — the previous post covered who can be adopted and the six specific conditions on the adoption itself. This post covers the other two requisites from Section 6: who has the capacity to adopt, and who has the capacity to give a child in adoption.

The Problem This Topic Solves

Even if a child is fully eligible to be adopted and every condition in Section 11 is met, the adoption is still invalid unless it is made by someone with the legal capacity to adopt, and given by someone with the legal capacity to give the child away. Sections 7, 8, and 9 of the Hindu Adoptions and Maintenance Act, 1956 answer exactly these two questions.

Capacity of a Male Hindu to Adopt — Section 7

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. The proviso attaches one important condition: if he has a wife living, he cannot adopt without her consent, unless that wife has completely and finally renounced the world, has ceased to be a Hindu, or has been declared by a competent court to be of unsound mind. Where a man has more than one wife living at the time of the adoption, the consent of all of them is necessary, unless any individual wife's consent is excused for one of the same three reasons.

Capacity of a Female Hindu to Adopt — Section 8

Section 8, as it stands today, gives any female Hindu who is of sound mind and not a minor the capacity to take a son or daughter in adoption in her own right — provided that if she is married, her marriage has been dissolved, or her 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 to be of unsound mind.

This is a comparatively recent position. Before the Personal Laws (Amendment) Act, 2010, a married woman had no independent capacity to adopt at all — only her husband could adopt, and she could merely give or withhold consent under the Section 7 proviso above. The 2010 amendment rewrote Section 8 to give Hindu women, married or unmarried, an independent right to adopt in their own name, subject only to the conditions above.

• Section 7 — any male Hindu, sound mind, major, can adopt; if he has a living wife, her consent is required unless she has renounced the world, ceased to be Hindu, or been declared of unsound mind by a court.
• Section 8 (post-2010) — any female Hindu, sound mind, major, can adopt independently, whether married or unmarried, subject to the same three exceptions where she is married.
• Both sections require soundness of mind and majority (18 years) — a minor or a person of unsound mind cannot adopt under either section.

• Before the 2010 amendment, only a widow (and, in narrow circumstances, an unmarried woman) could adopt in her own right under the old Section 8 — the amendment significantly widened this to cover married women too, reflecting a real shift toward gender parity in adoption rights.
• The consent requirement under Section 7 is about the wife's consent to the husband's adoption — it does not make the wife a joint adopter; the adoption is still made by the husband alone, with her consent as a precondition.

Who Can Give a Child in Adoption — Section 9

Section 9 answers the other side of the transaction — who is legally entitled to give a child away in adoption. Section 9(1) states plainly that no person except the father, the mother, or the guardian of a child has the capacity to give that child in adoption.

The father's right [Section 9(2)] — if alive, the father has the right to give the child in adoption, but this right cannot be exercised without the mother's consent, unless she has completely and finally renounced the world, ceased to be a Hindu, or been declared by a court to be of unsound mind.

The mother's right [Section 9(3)] — the mother may give the child in adoption if the father is dead, 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.

The guardian's role [Section 9(4)] — where both parents are dead, have completely and finally renounced the world, have abandoned the child, have been declared of unsound mind, or where the child's parentage is simply unknown, the child's guardian may give the child in adoption — but only with the previous permission of the court, and the guardian may even give the child to himself or herself as adoptive parent, with that same court permission.

Who Can Give a Child — Order of Priority, At a Glance

A Practical Example

Suppose a Hindu father wants to give his son in adoption to his brother's family, but the child's mother refuses to consent, and none of the three exceptions (renunciation, ceasing to be Hindu, unsound mind) apply to her. Under Section 9(2), the father cannot validly give the child in adoption without her consent — her refusal is a complete legal bar, not merely a factor the court weighs. Now suppose instead both parents have died, and the child's grandmother is the appointed guardian. She may give the child in adoption under Section 9(4) — but only after obtaining the court's previous permission; she cannot simply arrange the adoption on her own authority the way a living parent could.

Quick Revision Points

• Section 7 — any male Hindu, sound mind, major, can adopt; wife's consent needed unless she has renounced the world, ceased to be Hindu, or is of unsound mind by court declaration.
• Section 8 (as amended in 2010) — any female Hindu, sound mind, major, married or unmarried, can adopt independently, subject to the parallel conditions where she is married.
• Section 9(1) — only the father, mother, or guardian can give a child in adoption.
• Section 9(2) — father's right to give is subject to the mother's consent.
• Section 9(3) — mother can give if the father is dead, has renounced the world, ceased to be Hindu, or is of unsound mind.
• Section 9(4) — guardian can give only with the court's previous permission, and only where both parents are unavailable or the child's parentage is unknown.