Eligibility Criteria for Adoption
Who can adopt?
Section 7: Conditions for a Hindu Male to adopt
According to Section 7 of the Hindu Adoption and Maintenance Act, 1956, a Hindu male has the capacity to adopt, provided the following conditions are fulfilled:
Legal Requirements:
- He must be a Hindu by religion.
- He must be of sound mind.
- He must be a major (i.e., 18 years or above).
- If he has a living wife, he must obtain her consent (unless she has renounced the world, ceased to be Hindu, or declared mentally unsound).
Explanation:
The consent of the wife is mandatory to protect her rights and uphold family integrity. If there are multiple wives, consent of all is required unless exempted under special circumstances.
Section 8: Conditions for a Hindu Female to adopt
Under Section 8 of HAMA, a Hindu female can adopt a child only if:
Conditions:
- She is a Hindu, a major, and of sound mind.
- She is either unmarried, or her husband is:
- Dead, or
- Has completely renounced the world, or
- Has ceased to be a Hindu, or
- Declared by court as of unsound mind
Therefore, a married Hindu female cannot adopt on her own if her husband is alive and not disqualified.
Illustrative Example:
Example 1. A married Hindu male wants to adopt a child, but his wife does not consent. Is the adoption valid?
Answer:
No, as per Section 7, the adoption is not valid without the wife’s consent, unless she is declared of unsound mind or covered under exceptions provided in the Act.
Who can be adopted?
Section 10: Persons who may be adopted
According to Section 10 of HAMA, only the following persons may be adopted:
Conditions:
- The person must be a Hindu.
- The person must be unmarried, unless there is a custom that permits married persons to be adopted.
- He/she must be under 15 years of age, unless a custom allows adoption beyond this age.
- The child must not have been previously adopted.
Restrictions on Adoption
- Gender restriction: If the adopter already has a son or son’s son or son’s son’s son, he cannot adopt another male child.
- Similarly, if there is already a daughter or daughter’s daughter or daughter’s daughter’s daughter, another girl child cannot be adopted.
This ensures that adoption is not used to favor one child over existing natural children of the same gender.
Illustrative Example:
Example 2. A Hindu couple already has a biological daughter. They wish to adopt another girl. Is this allowed?
Answer:
No, they cannot adopt another girl child, unless the existing daughter is no longer alive. The law restricts same-gender adoption if the adopter already has a child of that gender.
Capacity to give in adoption
Section 9: Persons capable of giving in adoption
Under Section 9 of HAMA, the following persons are legally capable of giving a child in adoption:
1. Father:
Has the primary right to give in adoption. However, he must take the consent of the mother, unless she is disqualified (renounced the world, ceased to be Hindu, or declared of unsound mind).
2. Mother:
Can give the child in adoption:
- If the father is dead, or
- Has completely renounced the world, or
- Ceased to be Hindu, or
- Declared by court as of unsound mind
3. Guardian:
If both parents are dead or incapable, the guardian can give the child in adoption, but only with the prior approval of the court.
Judicial Safeguards:
- The court must ensure that the adoption is for the welfare of the child.
- The child's consent is also required if the child is old enough to understand the implications (usually above age 5 or 6).
Illustrative Example:
Example 3. A widowed Hindu mother wants to give her 6-year-old son in adoption. Can she do it legally?
Answer:
Yes. As per Section 9, the mother can give the child in adoption if the father is deceased. She does not need any court approval if she is the natural guardian and acts in the child’s welfare.